THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


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JUDGE  SH^AW'S  WEW  WORK, 

FOR 

EXECUTORS  AND  ADMINISTRATORS 


ISAAC  N.   WHITING  has  this  day  published, 

A   MANUAL 

FOR 

EXECUTORS  AND  ADMINISTRATORS, 

IN  THE 

SETTLEMENT  OF  THE  ESTATES  OF  DECEASED  PERSONS: 
With  Practical  Forms. 

BY  JOSEPH  R.  SWAN, 

President  of  the  12th  Judicial  Circuit,  and  Author  of  "Swan's 
Treatise  on  the  law  relating-  to  the  Powers  and  Duties  of  Justices 
of  the  Peace  and  Constables,  in  the  State  of  Ohio." 

1  voL  8vo.  pp.  350.  Price.,  ^1.25  in  law  binding. 
This  work  is  intended  to  be  what  its  title  purports,  ^  Manual 
for  those  who  settle  the  estates  of  deceased  persons.  It  embodies 
the  provisions  of  the  Statutes,  with  such  Comments,  Decisions, 
Forms,  and  other  matter,  as  are  deemed  requisite  for  persons  not 
skilled  in  the  law,  to  understand  the  ordinary  duties  of  Executors 
and  Administrators.  This  object  has  been  kept  in  view  through- 
out, not  only  because  a  large  book  would  be  almost  useless  to 
those  persons  who  desire  to  read  no  more  than  is  necessary  to 
make  themselves  well  acquainted  with  their  general  duties,  but 
because,  in  most  cases,  an  Executor  or  Administrator  would  not 
be  justifiable  in  purchasing  an  expensive  work.  Besides,  it  will 
perhaps  be  found  that  this  book  embodies  much  more  useful  in- 
formation than  the  most  voluminous  and  elaborate  English  works 
upon  the  same  subject.  The  various  subjects,  as  will  be  per- 
ceived from  the  following  Table  of  Co7itents,  are  treated,  as  near 
as  could  be,  in  the  order  in  which  the  various  duties  should  be 
performed;  beginning  with  the  Notice  to  Creditors,  then  the 
taking  of  the  Inventory  and  Schedules,  with  Forms;  the  Sale 
and  Sale-bill;  what  are  Assets  and  what  are  not;  the  Collection 
of  the  Assets,  and  when  and  how;  the  Authentication  of  Claims 
against  the  estate,  and  tlieir  arhitrp'ion,  &c.,  with  Forms;  the 
Sale  of  the  Real  Estate;  the  Itcmedies  by  and  against  Executors 
and  Administrators;  the  Mode  of  Sellllng  Insolvent  Estates,  &c. 
&c. 

From  the  well  known  talents  of  the  author,  and  the  time  and 


labor  which  lie  lias  devoted  to  the  above  work,  the  publisher  con- 
fidently believes  it  will  be  found  equally  as  valuable  to  Executors 
and  Administrators,  as  his  well  known  "Treatise"  has  been  to 
Justices  of  tlie  Peace,  Lawyers,  and  men  of  business  generally. 

For  sale  at  the  Bookstore  of 

1.   N.   WlIlTixNG  &.  HUNTINGTON. 

Columbus,    January,    1811.. 


CONTENTS. 

PART   FIRST. 

Chap.  I. — thk  notice  to  chkditors. 

CllAr.   2. Al'lMtAISKK.S,     INVENTORY,    AND    ALLOWANCE    TU 

TIIKAVIPOW  AND  ClllLDRKN. 

1.  The  appointment  and  oath  of  the  appraisers. — 2.  No- 
tice of  taking  the  inventory. —  3.  What  pro[icrty  shall  be 
included  in  the  inventory,  and  how  to  obtain  possession  of 
the  assets.  —  4.  Form  of  tlie  inventory.  —  5.  Properly  rc- 
tincd  by  the  widow  and  children,  and  the  alluwunce  of  their 
year's  support. 

Chap.  3. — the  sale  of  the  personal  estate. 

1.  When  and  what  property/  to  be  sold. — 2.  How  the  per- 
sonal property  to  be  sold,  and  notice  thereof. — 3.  The  sale- 
bill. 

Chap.  4. — avhat  are  assets,  and  what  are  not. 

1.  What  are  in  general  deemed  assets.  —  2.  Real  estate, 
and  chattels  real — 3.  Chattels  personal;  (A.  C/iallcls  ani- 
mate. ]j.  Chattels  vegetable.  C.  W/iut  chattels  ^-c.  go  to  the 
heir  and  what  are  deemed  fixtures.  D.  Leases.  E.  Rents. 
F.  Property  held  by  decedent  as  trustee  Sf-c.  G.  Annuities. 
H.  Stocks.  I.  Goods,  ^-c.,  in  other  county  or  state.  J.  Pol- 
icies of  insurance.  K.  Indentures  of  appi'cnticeship.  L.  Part- 
nership and  joint  debts,  SfC.  M.  Goods  mortgaged.  N.  Mo- 
ney.) 


Contents  of  Siuaris  Manual.  3 

Ch.  5. ALLOWANCE  OF  TIME  TO  REDUCE  ASSETS  TO  MONET. 

Ch,  6 THE  COLLECTION  OF  DEBTS  &C.  DUE  TO  AN  ESTATE. 

1.  The  general  duty  of  Executors  and  Administrators  in 
relation  to  the  collection  of  debts. — 2.  Book  accounts  of  the 
decedent. — 3.  When  offsets  to  be  allowed,  and  when  not. — 

4.  Mortgages. — 5.  Title  bonds,  deeds,  and  other  contracts 
for  land,  held  by  the  decedent. — 6.  Claims  against  the  ex- 
ecutor, and  claims  discharged  by  the  will. — 7.  Actions  for 
certain  injuries  and  frauds  committed  in  the  lifetime  of  the 
decedent. — 8.  What  actions  pending  at  the  death  of  plaintiff 
survive,  &c. 

Chap.  7. — within  what  time  creditors  must  present 
THEIR  claims.  Claims  against  an  insolvent  estate. 

Chap.  8. — the  mode  and  time  of  establishing,  and  suits 
ON,  claims  against  an  estate  supposed  to  be  sol- 
vent;   AND  the  liabilities,  &C.,   OF  THE  EXECUTOR   OR 

administrator,  to  the  creditors. 

I.  Authentication  and  allowance  of  claims  against  an  es- 
tate: [A.  The  authentication  or  proof  of  claims;  B.  The 
allowance  of  claims.] — 2.  Suits  pending,  and  judgments 
rendered  against  a  decedent,  at  the  time  of  his  death.  —  3. 
Claims  rejected  by  the  executor  or  administrator,  how  ar- 
bitrated; and  the  limitation  of  actions  upon  rejected  claims; 
[.L  What  is  deemed  a  disputed  or  rejected  claim;  B.  With- 
in what  time  a  rejected  claim  must  be  sued  by  a  creditor,  if 
not  referred  to  arbitration,  and  when  barred;  C.  Under 
what  circumstances  claims  of  creditors  may  be  referred  to 
arbitration;  D.  Form  of  agreement  for  that  purpose.  E. 
Mode  of  proceeding  if  the  claim  does  not  exceed  one  hun- 
dred dollars;  F.  Mode,  if  claim  exceeds  that  sum.]-~4.  Oth- 
er suits  than  arbitrations  upon  claims  against  an  estate. — 

5.  Limitation  of  actions  against,  and  the  presentation  of 
claims  to,  an  executor  or  administrator.— -G.  As  to  costs  of 
suits  on  claims  against  an  estate. — 7.  As  to  executions,  and 
proceedings  for  waste,  against  an  executor  or  admr. 

Chap,  9. — of  the  payment  of  the  nKBfs  of  an  estate. 

1.  In  what  order  debts  are  to  be  paid,  and  what  are  pre- 
ferred debts. — 2.  What  class  of  debts  may  be  paid  during 


4  Contents  of  Sunn's  Manual. 

the  first  year  of  the  administration. — 3.  Of  the  payment  of 
general  crcilitors  l)efore  the  expiration  of  one  year  from  the 
time  the  exeeiitor  or  administrator  gave  notice  of  his  ajv 
pointment.  —  4.  Of  the  payment  of  general  creditors  after 
the  expiration  of  a  year  from  the  time  the  executor  or  admi- 
nistrator gave  notice  of  liis  appointment. — 5.  Vouchers  or 
receipts  for  debts  paid. 

Chap.  10. — i'krformaiVcf,  of  other  than  money  con- 
tracts OF  the  decedent. 

1.  Contracts  for  the  conveyance  of  real  estate. — 2.  Other 
contracts. 

Chap.  1 1. — sale  of  real  estate  by  order  of  court. 

1.  In  what  cases  application  may  be  made  for  the  sale. — 2. 
When  application  therefor  to  be  made. — 3.  Where  petition 
to  be  filed. —  4.  General  requisites  of  petition. —  5.  When 
an  atlidavit  required  to  the  petition. — 6.  The  form  of  the 
petition  and  afHdavit. — 7.  Parties  to  the  petition. — 8.  What 
estate  in  lands,  and  what  portion  of  the  lands  will  be  or- 
dered sold. — 9.  Process  and  notice  to  defendants,  and  proof 
of  service,  and  waiver  of  notice,  &c. —  10.  Guardian  ad  li- 
tem.— 11.  In  what  cases,  and  when,  an  appraisement  will 
be  ordered. — 12.  The  ap])ointment  of  appraisers. — 13.  The 
oath  of  the  appraisers  and  certificate  thereof. — 14.  Duty  of 
appraisers  in  assignment  of  dower,  and  appraisement,  and 
how  to  estimate  the  gross  value  of  a  life  estate. — 15.  Forms 
of  appraisements  and  assignments  of  dower. — 16.  Fees  of 
appraisers. — 17.  How  the  heirs  &c.  may  prevent  a  sale  of 
the  real  estate. — 18  When  a  further  administration  bond 
will  be  required  to  secure  the  purchase  money. — 19.  The 
order  of  sale,  notice  of  sale,  and  sale. — 20.  Report  of  sale 
and  confirmation. — 21.  Form  of  report  of  sale. — 22.  Deed 
to  the  purchaser,  and  its  effect.  —  23.  How  money  arising 
from  the  sale  of  the  real  estate  applied. — 24.  Effect  of  death 
of  petitioner  upon  the  proceedings. 

Chap.  12.  —  compensation,  account,  settlement,  dis- 
tribution, AND  PAYMENT  OF  LEGACIES. 

1.    Compensation  of  an  executor,  or  administrator, 

2.  When  an  account  to  be  made  out  and  filed. — 3.  Direc- 
tions for  making  out,  and  form  of,  an  account,  and  with 
what  to  be  charijed  and  credited. — 4.  Publication  of  notice 


Contents  of  Swan''s  Manual.  5 

of  filing  account,  and  by  whom  paid,  &c. — 5.  When  the  ac- 
count will  be  settled  by  the  court. — 6.  Exceptions  to  the  ac- 
count.— 7.  How  the  account  will  be  settled,  and  e.xamina- 
tion  of  the  executor  or  administrator  under  oath. —  8.  Open- 
ing and  review  of  the  account,  after  its  settlement.— 9.  Dis- 
tribution of  balance  found  to  be  in  the  hands  of  an  admin- 
istrator, and  settlement  thereof,  and  payment  of  heirs  and 
legatees. — 10.  Disposition  of  moneys  belonging  to  heirs  and 
legatees,  and  unclaimed. 

Chap.  13. — proceedings  for  not  returning  an  inven- 
tory, SALE  BILL,  OR  ACCOUNT, 

Chap.  14. — administrator  de  bonis  non. 

Chap.  1 5. — special  administration. 

Chap.  16. — administration  during  the  minority  of  in- 
fant EXECUTORS. 

Chap.  17. — joint  administration. 

Chap.  1 8. — administration  with  the  will  annexed. 

Chap.  19. — foreign  executors  and  administrators. 

Chap.  20. — personal  liability  of  executors  and  admi- 
nistrators UPON  their  promise. 

Chap.  21. — remedy  of  heirs,  creditors,  &c.,  upon  the 
administration  bond. 
1.  The  effect  of  giving  separate  or  joint  and  several  ad- 
ministration bonds. — 2.  When,  and  for  what,  a  suit  may  be 
brought  upon  the  administration  bond:  [A.  By  a  creditor 
of  the  estate,  to  recover  his  dchl.  B.  By  a  distributee,  to  reco- 
ver his  distributive  share  of  the  estate.  C.  By  a  legatee,  to 
recover  his  legacy.  D.  Other  suits  upon  the  administration 
bond.] — 3.  In  what  court  and  mode  such  suit  may  be  brought 
— 4.  Proceedings  in  a  suit  at  law  on  such  bond. — 5.  Pro- 
ceedings in  a  suit  in  chancery  on  such  bond. 

Chap.  22. — proceedings  by  creditors  against  the  hejrs 
&c.  OF  deceased  persons. 


6  Contents  of  Sxcan's  Manual. 

PART  SECOND. 

THE  SKTTLKMKNT  OK  INSOLVENT  KSTATKS. 

CiJAHT.  23. — The  duties  of  an  executor  or  administrator  ge- 
nerally, of  an  estate  supposed  to  be  insolvent,  before  he 
represents  tlie  estate  as  insolvent. 

Chapt.  24. — When  and  how  an  estate  declared  insolvent  and 
the  general  effect  thereof,  and  order  of  court  thereon. 

Chap.  25. — General  powers  and  duties  of  commissioners. 

Chap.  26. — The  rights  and  remedies  of  creditors,  in  estab- 
lishing their  claims,  &c.,  when  commissioners  are  ap- 
pointedto  audit  the  claims. 

Chap.  27. — Duties  of  an  executor  or  administrator,  as  to 
allowing  and  listing,  and  reporting  the  claims  of  credi- 
tors upon  an  insolvent  estate,  when  no  commissioners  are 
appointed;  and  exceptions  to  his  report. 

Chap.  28. — Rights  and  remedies  of  creditors  in  establish- 
ing their  claims,  ^c,  when  the  executor  or  administrator 
acts  in  the  place  of  commissioners. 

Chap.  29. — The  allowance  and  payment  of  contingent  lia- 
bilities of  the  decedent. 

Chap.  30. — The  allowance  of  claims  secured  by  mortgage 
or  judgment  lien. 

Chap.  31. — The  account  of  an  executor  or  administrator  of 
an  insolvent  estate,  and  remedies  against  him  tor  not  fil- 
ing the  same,  &c. 

Chap.  32. — Order  of  distribution  among  creditors  after  the 
return  of  the  commissioners'  report  of  claims. 

Chap.  33. — Order  of  distribution  among  creditors  at'ter  tlie 
return  by  the  executor  or  administrator  of  the  list  of 
debts  against  an  insolvent  estate. 

Chap.  34. — Proceedings,  if  an  estate  represented  to  be  insol- 
vent, proves  to  be  solvent,  or  after  being  declared  by  the 
court  solvent, afterwards  turns  out  to  be  insolvent. 


Contents  of  Sivan^s  Manual.  7 

PART   THIRD. 

THE    STATUTE     PROVIDING   FOR    THE     SETTLEMENT    OF  THF. 
ESTATES  OF  DECEASED  PERSONS. 

1.  Of  letters  testamentary  and  letters  of  administratration. 

2.  Of  the  inventory;  and  the  allowance  to  the  widow  and 
children;  and  of  the  other  debts  due  to  the  estate. 

3.  Of  the  sale  of  the  goods  and  chattels,  and  of  the  sale  bill. 

4.  Of  the  notice  to  creditors;  and  of  the  authentication  and 
payment  of  the  debts,  and  payment  of  legacies. 

6.  Of  the  sale  of  real  estate  for  the  payment  of  debts;  and  of 
the  distribution  of  the  proceeds  thereof. 

(3.  Of  the  account  and  compensation  of  an  exr.  or  admr.; 
and  provisions  as  to  the  distribution  in  certain  cases. 

7.  Of  suits  on  administration  bond,  &c. 

8.  Of  proceedings  when  the  estate  of  deceased  persons  is 
insolvent. 

9.  Of  proceedings  by  creditors,  against  the  heirs,  devisees, 
&c.,  of  deceased  debtors. 

10.  Miscellaneous  provisions. 


He  also  publishes  the 
SCHOOL  AND  TOWNSHIP  OFFICER'S  MANUAL: 

By  Warren  Jenkins,  Esq.  Attorney  at  Law. 

1  vol.  sup.  roy.  12mo.  316  pp.  small  type,  with  side  notes 
and  margmal  references.     Price,  $1. 

This  work  is  divided  into  three  parts: 

1.  Of  Common  Schools,  and  the  Duties  of  School  Officers. 

H.  Of  Township  Officers,  Administrators  and  Executors, 

and  their  Duties.     111.  Of  Conveyancing ;  containing  a  full 

and  complete  set  of  Forms  for  all  kinds  of  conveyancing;  Articles  cf  Agreement, 
Indentures.  Bills,  Promissory  Notes,  S^c.  ^-c. 

Tliis  work  is  desicncd  to  supply  School  and  Townsliip  Officers,  Administra- 
tors and  Executors,  witli  a  plain  and  intelligible  directory  in  every  department  of 
their  respective  duties,  according  to  the  laws  now  In  force.  The  duties  of  each 
Officer  are  separately  and  distinctly  treated  of  and  classified,  and  the  classifica- 
tion is  so  arranged  as  to  present  to  tlio  officer  his  several  duties  in  the  order  in 
which  they  occur,  from  his  election  or  appoinlnicnt  until  the  expiration  of  his 
term  of  office  and  the  settlement  of  his  accounts.  The  several  laws  now  in  force 
defining  those  duties,  are  also  inserted  at  length  in  separate  sections. 

Copious  references  are  given  throughout  the  work  to  the  authorities  relied 
upon. 


A  NEW  EDITION  OF 

SWAN'S  TREATISE. 

ISAAC  N.  WHITING, 

lias  published  a  New  Edition  of  Swan's  Treatise;  with  re- 
ferenccs  to  the  newly  lieviscd  Slaiutes  of  this  State.  A 
Treatise  on  the  Law  relating  to  the  Powers  and  duties  of 
Justices  of  the  Peace  and  Constables,  in  the  Slate  of  Ohio: 
with  Practical  Forms,  &ic.  By  Joseph  R.  Swan,  President 
Judge  of  the  12th  Judicial  Circuit.  1  vol.  roy.  8vo,  GOG  p. 
The  First  Part  contains  a  summary  view  of  the  progress 
of  a  civil  suit,  from  its  commencement  to  its  termination, 
with  the  general  principles  of  law  in  relation  to  the  differ- 
ent kinds  of  actions — who  should  sue  and  be  sued — the  issu- 
ing, service,  and  return  of  the  summons  and  capias:  the  at- 
tendance and  competence  of  witnesses:  the  trial:  the  gene- 
ral rules  of  evidence:  the  form  and  effect  of  different  kinds 
of  judgments:  the  stay  of  execution  and  proceedings  there- 
on: tlie  issuing  of  execution:  the  power,  duty  and  liabili- 
ty of  the  officer  in  arresting,  levying,  advertising  and  sell- 
ing: the  trial  of  the  right  of  property;  returns  of  execu- 
tions, etc. 

The  Second  Part  contains  the  general  rules  of  law  in  re- 
lation to  statutory  actions;  such  as  forcible  entry  and  de- 
tainer; attachment,  &c.;  and  treats  of  contracts,  the  rights 
and  liabilities  of  partners,  carriers  of  goods,  inkeepers,  hus- 
band and  wife,  parent  and  child,  master  and  servant,  and 
other  miscellaneous  matters  of  a  civil  nature. 

The  Third  Part  contains  the  law  in  relation  to  prosecu- 
tions for  crimes  and  misdemeanors,  with  practical  forms. 

The  Fourth  Part  contains  forms  of  conveyances,  wills, 
agreements,  &c. 

The  three  foregoing  works,  may  he  had  in  Cincinnati,  at  tlie  hookBlore  of 
Deselver  and  Hurr,  George  Conklin,  E.Morgan  l^  Co.,  and  George  Cox;  at 
R.  A.  Ells',  Dayton;  C.  U.  Davis',  Intllannpolif,  la.;  Jason  Cape's,  Circlcville  ; 
Joseph  Jones'  and  Wilson  Carey's,  Cliillicotlie;  Henry  H.  Ncal's,  Gallipolis; 
SlocomI)  1^  liiick,  Mariclla;  Rohb  and  Sicplicnson's.  Wieeling;  James  Turn- 
bull's,  Slculenville;  C.  II.  Kay  (^-  Co's.,  Pilisliurgli;  B.  L.  <S-  T.  Ilannn's,  New 
Lisbon;  John  Paxlon's,  Canton;  Samuel  Well's,  N(  wark;  VV.  VV.  Reed's,  and 
Parke  4"  Bcnnclt's,  Zanesville;  Joseph  Symonds',  Lancaster;  F.  X.  Fretscliy's, 
Coshocton;  J.  IT.  Eccbe's,  Akron  ;  O.  B.  Beele's,  Cuyal:oga  Falls  ;  Porter  and 
Ide's,  Warren  ;  M.  C.  Younclove's.  Cleveland  ;  I.  R.  Henry's,  Medina;  Wm. 
Chapin's,  Norwalk;  R.  L.  Hill's,  Biruiingham,  Huron  county;  I.  F.  Frozer'a, 
Sidney;   Jacob  Barndl's,  Findlay. 

Columbus,  Jan.  1843. 


A  TREATISE 


ON  THE 


LAW  RELATING  TO  THE  POWERS  AND  DUTIES 


OF 


JUSTICES  OF  THE  PEACE 
AND  CONSTABLES, 


IN  THE 


STATE  OF  OHIO: 


WITH 


PRACTICAL   FORMS,    &c.  &c. 


BY  JOSEPH  E.  SWAN, 

PKESIDENT  OF  THE  TWELFTH  JUDICIAL  CIRCUIT. 


THIKD  EDITION,  REVISED  AND  CORRECTED. 


COLUMBUS: 

PUBLISHED    BY    ISAAC    N.    WHITING, 
184L 


r 


Sv>  ^^ 


Entered  nccoriliii!;  to  Art  of  Congress,  in  tlie  year  1836,  by  Isaac  N.  Whitinq,  in  tlic  Clerk's 
Office  of  the  District  Court  of  the  District  of  Ohio. 


rRI>-TED  BY  WKIGIIT  &  LEGG,   COLUMBUS. 


ADVERTISEMENT  TO  THE  THIRD  EDITION. 

The  second  edition  of  this  compilation  being  "out  of  print," 
the  present  edition  has  been  corrected  and  revised  witli  a 
view  to  embody  in  the  text  and  notes  such  laws  as  are  now 
in  force,  including  the  statutes  passed  at  the  last  session  of 
the  Legislature. 

The  references  at  the  foot  of  the  pages  have  been  cor- 
rected so  as  to  refer  to  the  collated  statutes  just  pubUshed. 

Columbus,  October,  1841. 


e480SB 


PREFACE. , 

The  object  of  this  Treatise  is  to  enable  the  Magistrate 
and  the  Constable,  in  the  exercise  of  their  respective  of- 
fices, to  understand  and  apply  the  common  practical  rules 
of  la^v,  as  kno\vn  and  recognized  in  the  higher  courts  of 
justice.  It  is  not  to  be  regarded  as  embracing  all  possible 
cases  that  may  occur  in  the  ever  changing  affairs  of  human 
life,  but  only  as  a  compilation  of  general  rules,  accompa- 
nied with  practical  forms,  such  as  may  be  useful  to  the 
Magistrate  in  the  performance  of  his  duties,  and  to  the 
ConstaTjle  in  executing  the  ordinary  process  of  the  law. 

The  jurisdiction  of  the  Magistrate  is  so  extensive,  and 
embraces  so  many  of  the  transactions  of  life,  that  men  of 
business  may  find  it  for  their  interest  as  well  as  conveni- 
ence, to  consult  the  following  pages. 

This  Treatise  may  occasionally  fall  under  the  notice  of 
the  Bar.  It  is  to  their  liberality,  and  to  their  knowledge 
of  the  difficulties  incident  to  the  execution  of  a  work  of  this 
kind,  that  the  writer  looks  for  that  indulgence  which  his 
errors  and  imperfections  so  much  need. 


CONTENTS. 


PART  FIRST. 
CHAPTER  I. 

Page. 
JUSTICES  OF  THE  PEACE. 

Sec.  I.     Number  of  justices  in  each  township,  1 

2.  Term  of  office,  1 

3.  When  and  how  elected,  2 

4.  How  their  election  may  be  contested,  2 

5.  Of  their  official  oath  —  bond,  and  forms  thereof,  3 

6.  Resignation,  and  when  the  office  is  deemed  vacant,  4 

CHAPTER  II. 

JtJRISDICTION  IN  CIVIL  PROCEEDINGS. 

Sec.  1.     Of  the  general  jurisdiction  of  a  justice,  6 

(A)  In  what  cases  it  is  co-extensive  icifh  tlie  county,  5 

{B)   When  it  extends  to  more  than  one  hundred  dollars,  6 

(C)  In  tohat  cases  a  justice  has  no  jurisdiction,  Q 

2.     The  consequences  of  proceeding  without  jurisdiction,  8 

CHAPTER  III. 

OF  THE  DIFFERENT  ACTIONS,  8 

Sec.  1.     Of  the  action  of  trespass  on  the  case,  9 

2.  Of  the  action  of  covenant,  1 1 

3.  Of  the  action  of  debt,  H 

4.  Of  the  action  of  trover,  1 1 

5.  Trespass  to  personal  property,  12 

6.  Trespass  to  lands,  13 

7.  Of  joining  diflerent  causes  of  action  in  one  suit,  13 

CHAPTER  IV. 

OF  THE  PARTIES  TO  ACTIONS. 

Sec.  1.     Who  must  be  plaintiff,  15 

{A)  In  an  action  on  a  contract,  15 

{B)   Who  7nust  be  plaintiff  in  an  action  for  a  wrong,  17 

2.  Of  the  consequences  of  an  omission,  or  mistake,  in  making 

parties  plaintiff,  19 

3.  Who  must  be  defendant,  19 

{A)  In  an  action  on  a  contract,  19 

(i>)    Who  may  be  defendant  in  an  action  for  a  wrong,  22 

4.  Of  the  consequences  of  an  omission,  or  mistake,  in  making 

parties  del'endants,  23 

5.  Of  the  consequences  of  the  decease  of  parties  while  suit  is 

^               pending,  24 


VI  CONTENTS. 

CHAPTER  V. 

OF  THE  COMMENCEMENT  OF  SUITS.  Page. 

Sec.  1.     Of  suits  by  and  against  a  non-resident  of  the  county  oi* 

township,  25 

2.  "W'lien  a  summons,  and  when  a  capias,  the  first  process,  27 

3.  lie(|uisites  and  form  of  a  summons,  and  the  indorsements 

thereon,  31 

4.  Of  the  service  and  return  of  a  smnmons,  32 

5.  Re(|uisifes  and  form  of  a  ca])ias  ad  respondendum,  33 
n.     Of  the  service  and  return  of  a  capias  ad  respondendum,  34 

CHAPTER  VI. 

OF  THE  BILL  OF  PARTICULARS  AND  CLAIMS  TO  BE  FILED  WITH  JUSTICE. 

Sec.  1.     Of  the  bill  of  particuhn-s,  38 

(A)   W/icii  the  jMi'lics  should  file  it,  and  the  evidence 

thereon,  38 

{B)   What  a   hill  of  particulars  must  contain,  and  the 

'effect  of  mistakes  or  omissions  therein,  38 

(C)  Houj  to  proceed  where  either  j/arli/  7ie^lects  to  fie  a 

hill  (f  particulars,  40 

2.     Of  tlie  claims  which  must  be  filed  with  the  justice,  and  his 

proceedings  thereon,  40 

CHAPTER  VII. 

OF   THE    PROCEEDINGS  BEFORE    THE   TRIAL,  AVHEN   A   SUIT    IS   COMMENCED 

BY  A  SUMMONS. 

Sec.  1.  Of  entering  upon  the  docket  and  amending  the  return  to  the 
summons,  and  what  defects  and  errors  in  the  previous 
proceedings  are  waved  by  the  defendant's  appearance,       41 

2.  How  to  proceed  when  the  plaintiil"  fails  to  appear,  44 

3.  How  to  proceed  when  the  dcfeiuhmt  fails  to  appear,  and 

how  and  when  a  judgment  against  him  may  be  set  aside, 

and  a  new  trial  granted,  45 

4.  How  to  proceed  when  both  parties  fail  to  appear,  45 

6.  How  to  proceed  when  the  justice  fails  to  attend,  46 
G.     ^^'hen,  and  for  what  period,  a  suit  may  be  adjourned,  46 

(A)  For  the  hencfit  of  an  ahsent  2>«r/</,  46 

{B)  When,  and  for  ichat  ]7eriod,  a  cause  may  he  adjourn- 
ed at  the  request  of  the  jjlaintiff  or  defendant,  or 
hy  consent  of  holh,  ivith  the  form  of  an  affidavit 
for  an  adjournment,  47 

7.  Of  an  irregular  adjournment,  and  the  effect  thereof,  48 

CHAPTER  VIII. 

OF   THE  APPEARANCE  AND  ADJOURNMENT,  WHEN    SUIT   IS  COMMENCED  BY 

CAPIAS. 

Sec  1.     How  to  proceed  when  the  plaintiff  fails  to  appear,  49 

2.     For  what  period  an  adjournment  may  be  allowed,  49 


CONTENTS.  VII 

Page. 

Sec.  3.     How  to  proceed  when  one  or  both  parties  fail  to  appear  on 

the  adjourned  day  of  trial,  50 

4.  Form  of  a  recognizance  for  the  appearance  of  the  defend- 
ant, when  arrested  on  a  capias,  and  the  proceedings 
thereon,  61 

6.  Form  of  a  mittimus,  issued  for  the  commitment  of  the  de- 
fendant, 62 

6.     Form  of  a  precept  for  the  body  of  the  defendant,  63 


CHAPTER  IX. 

OF  THE  ATTENDANCE  OF  WITNESSES. 

Sec.  1.     Form  of  the  subpoena  for  witnesses,  how  served,  and  form 

of  the  return,  63 

2.     Proceedings  against  a  witness  for  disobeying  a  subpoena, 

with  forms  of  process  and  docket  entries,  64 

CHAPTER  X. 

OF  THE  COMPETENCY  AND  INCOMPETENCY  OF  WITNESSES. 

Sec.  1.     The  difference  between  the  competency  and  credibility  of 

witnesses,  67 

2.     Who  are  incompetent,  68 

(A)  From  loant  of  understanding,  or  on  account  of  color,  68 

{B)  From  icant  of  religious  j^rinciple,  58 

(C)  From  infamy  and  crime,  and  Jwio  proved,'  68 

(D)  From  interest,  and  how  restored,  69 

CHAPTER  XI. 

OF  THE  EXAMINATION  OF,  AND  PROOF  BY  WITNESSES. 

Sec.  1.     Of  ordering  witnesses  out  of  court,  62 

2.  Of  the  manner  of  examining  witnesses  —  their  opinion  — 

recollection,  63 

3.  How  the  character  and  credit  of  a  witness  may  be  impeach- 

ed, &c.,  64 

4.  Of  the  privilege  of  not  answering  questions,  65 
6.  Proceedings  against  a  witness  for  refusing  to  testify,  66 
6.     Of  the  number  of  witnesses  for  the  proof  of  a  fact,  and  the 

consequence  of  subpoenaing  too  many  witnesses,  66 

CHAPTER  XII. 

OF  PRESUMPTIVE  AND  HEARSAY  EVIDENCE. 

Sec.  1.     Of  presumptive  evidence,  67 

(A)  Of  the  nnlure  of  2)rcsu7nplive  evidence,  61 

(B)  Fresumplion  of  payment,  C8 
iC)  Fi^esumption  of  property,  68 

(D)  Presumption  of  the  death  of  a  j^erson,  68 

(E)  Presumption  that  a  person  holds  an  office,  68 
2.     Of  hearsay  evidence,                                                                         68 


Vm  CONTENTS. 


CHAPTER  XIII. 

Page. 
OF  ADOTSSI0N9. 

Sec.  1.     Of  admissions  by  the  parties  to  a  suit,  71 

2.  Admissions  by  tenant,  72 

3.  Admissions  by  agents,  72 

4.  Admissions  by  the  wife,  72 

5.  Admissions  by  a  partner,                   -  73 

6.  Admissions  by  co-trcsi)assGrs  and  others  who  have  acted 

jointly,  73 

7.  Admissions  by  criminals,  73 

8.  How  admissions  must  be  construed,  74 

9.  Admissions  which  cannot  be  given  in  evidence,  74 


CHAPTER  XIV. 

PROOF  BY  ■U-RITINGS. 

Sec.  1.     Explanation  of  the  rule  as  to  what  is  the  best  evidence,  and 

when  it  must  be  produced,  76 

2.  In  what  cases  a  written  instrument  must  be  produced  on  the 

trial,  and  when  its  contents  may  be  proved  by  copy,  or 
by  parol,  without  its  production,  77 

(A)   When  the  instrument  is  lost,  78 

{B)    When  the  instrument  is  in  the  possession  of  the  op- 
posite parti/,  and  herein,  of  the  notice  to  jjvoduce  it,       78 
(C)   Wlten  the  instrument  relates  to  land,  and  is  recorded,       79 
(X))   When  the  instrument  is  a  public  record,  79 

(£)   When  the  instrument  is  a  receipt  or  account  book,  or 

private  memorandum,  80 

3.  In  what  cases  the  execution  of  a  written  instrument  must 

be  proved  before  it  can  be  received  as  evidence;  and 

when  it  may  "be  received  without  proof  of  its  execution,  80 

(yl)    When  a  certified  copij  is  by  law  received  in  evidence,  81 
(i>)   When  an  opposite  party  lyroduces  an  instrument, 

and  claims  an  interest  under  it,  8 1 
(C)    When  suit  is  bi'ought  upon  a  deed,  promissory  note, 
or  bill  of  exchange,  and  herein,  of  the  affidavit 

ami  ])lea  in  such  case,  8 1 

4.  How  the  execution  of  written  instruments  must  be  proved,  83 

5.  Of  parol  or  verbal  evidence  to  contradict  or  vary  a  written 

instrument,  84 


CHAPTER  XV. 

DEPOSITIONS. 

Sec.  1.     By  and  before  whom  depositions  niay  be  taken,  87 

2.  Of  tlic  notice,  subpoena,  and  attachment,  and  forms  thereof,       87 

3.  Form  of  oath  to  witness,  and  forms  of  deposition,  certifi- 

cate, &c.,  89 

Oaths,  93 


CHAPTER  XVI. 

PROCEEDINGS  IN  JURY  CASES;  THE  DECISION  OF  A  CAUSE  BY  A  JUSTICE;  AND 
THE  EFFECT  AND   FORM   OF  JUDGMENTS. 

Sec.  1.     Proceedings  in  jury  cases,  and  the  decision  of  a  cause  by 

the  justice,  96 

(A)  In  iL-liat  cases  a  jury  is  alhioed,  when  to  he  claimed, 

and  the  effect  of  confession  as  to  costs,  95 

(jB)   Continuance,  venire,  and  inijjannehnent,  in  jury 

cases.  96 

(C)  Oath,  trial,  verdict,  Sj-c,  in  jury  cases,  97 

{D)   The  hill  of  exceptions,  98 

(E)   The  decision  of  a  cause  hy  a  justice.  102 

2.     Of  the  nature,  effect,  and  form    '['judgments,  102 

{A)  Of  the  nature,  effect,  and  form  of  judgments  of 

nonsuit,  102 

{B)  Of  the  nature,  effect,  and  form  of  a  judgiuent  of 

dicontinuance,  103 

(C)  Of  the  nature,  effect,  and  form  of  a  judgment  on 

the  merits.  103 

CHAPTER  XVn. 

FEES  AND  COSTS. 

Sec   1.     Items  of  the  fees  of  the  justice,  107 

{A)  For  issuing  lorits,  107 

{B)  For  entries  ujjon  the  docket,  108 

(C)  For  certificates,  cojpies  and  oaths,  108 

{D)  Miscellaneous  fees  of  the  justice,  108 

2.  Items  of  the  fees  of  a  constable,  108 

3.  Fees  of  witnesses  and  arbitrators,  109 

4.  How  the  costs  in  civil  suits  and  proceedings  should  be  taxed, 

and  may  be  recovered,  109 

5.  How  fees  in  criminal  cases  may  be  recovered,  111 

{A)  As  to  the  fees  of  the  justice.  111 

{B)  As  to  the  fees  of  the  constahle,  112 

(C)  Of  the  fees  of  witnesses,  113 

(£>)   XV  hen  such  fees  are  paid  hy  the  county,  113' 

CHAPTER  XVIII. 

OF  THE  DOCKET. 

Sec.  1.     How  the  entries  upon  the  docket  should  be  made,  1 14 

2.     Forms  of  entries  on  the  docket,  117 

(yl)  When  suit  is  hroug/it  on  an  account — ivhen  the  defcnd- 
jint  fails  to  appear,  and  trial  had — when  judgment  is 
rendered  for  the  plaintiff  on  the  merits  —  when  the 
judgment  is  set  aside  and  new  trial  had  —  ivhen  judg- 
ment is  rendered  for  the  defendant  on  the  juerils,  117 
(J5)  When  suit  is  on  a  note  and  a  capias  issues  —  ivhcu 
the  suit  is  hy  partners,  against  surviving  partners  — 
when  tlie  defetulant  enters  into  a  recognizance  upon  aib 
adjmirnment — ivhen  the  plaintiffs  fail  to  prove  they  arc 
partners — tvhen  a  nonsuit  is  entered,                                1 18 


CONTENTS. 


Page. 


(C)  WJieii  suit  is  hrou^hl  aiiainst  odminislrators — when  it 
is  brought  on  a  bond — ^rhcn  summons  is  served  by  copy 
left  (it  the  dwell ing  house  of  the  defendant — jvhen  a  set 
(jr  is  allowed  the  defendant — when  costs  are  recovered 
apainst  an  administrator,  119 

{D)  When  judgment  is  confessed,  121 

(E)  When  there  is  a  jury  trial,  122 

CHAPTER  XIX. 

APPEAL. 

Sec.   1.     Tn  what  cases  an  appeal  may  be  taken,  123 

2.  ^A'ithin  what  time,  and  for  what  amount,  a  recognizance  for 

an  appeal  must  be  entered  into,  124 

3.  Form  of  a  recognizance  for  an  a[)peal,  124 

4.  Of  filing,  &c.,  the  original  pajiers,  &c.,  in  court  125 

5.  How  to  proceed  when  the  parties  fail  to  enter  the  appeal  in 

court,  and  also  when  the  court  have  acted  upon  it,  125 

(A)  How  to  proceed  when  the  appeal  is  quashed  by,  or  not  en- 
tered in  the  Court  of  common  2>J cos,  125 
(jB)  How  to  proceed  ichcn  the  appeal  is  dismissed,  or  judg- 
ment rendered  in  court  against  apjjellant;  with  forms  of 
scire  facias  and  docket  e7itries,                                            126 


CERTIORARI, 


CHAPTER  XX. 
CHAPTER  XXI. 


129 


OF  THE  STAY  OF  EXECUTION. 

Sec.   1.  In  what  cases  no  stay  of  execution  is  allowed,  131 

2.  When,  and  for  what  time,  a  stay  may  be  allowed,  132 

3.  Of  proceedings  to  obtain  a  stay,  and  form  of  recognizance,  132 

4.  When  an  execution  may  issue  notwithstanding  the  stay,  133 

5.  Of  proceedings  by  the  plaintiff  to  charge  the  bail  for  stay 

of  execution,  and  form  of  scire  facias,  134 

6.  I^orm  of  docket  entry  and  judgment  in  proceedings  against 

surety  for  the  stay  of  execution,  136 

7.  Of  proceedings  by  the  plaintiff  on  the  original  judgment 

after  judgment,  &c.,  against  the  surety  for  stay  137 

8.  Of  proceedings  on  the  original  judgment  by  the  surety  for 

stay  of  execution,  137 

CHAPTER  XXII. 

OF  THE'iSSTTING  ANT)  FORMS  OF  EXECUTIONS. 

Sec.   1.  When  and  what  kind  of  execution  may  be  first  issued,            138 

2.  In  what  cases  an  execution  may  issue  out  of  the  township,       140 

3.  When  a  venditioni  exponas  must  be  issued,  141 

4.  Form  of  a  fieri  facias,  141 

5.  Form  of  an  execution  against  the  goods,  chattels  and  body 

of  the  defendant,  "  142 

6.  Form  of  an  execution  against  the  goods  and  chattels  of  co- 

defendants,  where  some  of  them  are  sureties,  142 

7.  Form  of  au  execution  against  executors  and  administrators,  143 

8.  Form  of  a  venditioni  exponas,  143 


154 


CONTENTS.  XI 

CHAPTER  XXIII. 

OF  PROCEEDINGS  UNDER  A  FIERI  FACIAS. 

Sec.   1.     What  property  is  exempt  from  execution,  145 

2.  What  description  of  property  can  be  taken  on  execution,         146 

3.  When,  and  what  force  may  be  used  to  obtain  property 

on  execution,  148 

4.  What  is  a  good  levy,  and  what  not,  149 

5.  Of  the  effect  of  a  levy,  150 

6.  When  property  levied  upon  may  be  left  in  the  possession 

of  the  defendant,  by  the  constable  or  by  the  plaintiff, 

with  the  form  of  a  bond  for  re-delivery,  151 

7.  Effect  of  the  death  of  either  party  to  a  judgment  after  a 

levy^ 

8.  Of  the  advertisement  and  sale,  154 

9.  Of  the  title  which  a  purchaser  acquires  by  a  sale  on  exe- 

cution, 156 

10.  Of  the  return  of  executions,  and  the  forms  thereof,  156 

11.  Suggestion  of  lands,  162 

12.  Of  the  rights  of  the  plaintiff,  and  the  duties  of  a  constable, 

when  there  are  two  or  more  executions  against  the 

same  debtor,  163 

13.  What  to  be  done  with  money  collected  upon  execution,  &c.        164 

CHAPTER  XXIV. 

OF  THE  SERVICE  AND  RETURN  OF  AN  EXECUTION  AGAINST  THE  GOODS  AND 
BODY  J   AND  OF  ESCAPES. 

Sec.  1.     Of  the  duty  of  the  officer  to  seek  for  goods  and  chattels,         166 

2.  ■  Of  the  arrest  and  commitment;  the  effect  thereof;  when 

the  defendant  ma}^  be  enlarged;  and  forms  of  returns,         167 

3.  Rights  and  liabilities  of  the  constable  and  parties  when  the 

defendant  escapes,  170 

CHAPTER  XXV. 

OF  THE  TRIAL  OF  THE  RIGHT  OF  PROPERTY  TAKEN   ON  EXECUTION,  173 

CHAPTER  XXVI. 

OF  TRANSCRIPTS ;  AND  OF  THE  DOCKET,  &C.,  OF  A  JUSTICE  WHOSE  OFFICE 

IS  VACANT. 

Sec.  1.     Who  is  entitled  to  a  transcript,  and  by  whom  the  same 

may  be  certified,  177 

2.  Of  the  docket,  &c.,  of  a  justice  whose  office  is  vacant,  by 

death  or  otherwise  —  proceedings  thereon,  and  upon 
transcripts  therefrom,  178 

3.  Of  proceedings  upon  other  transcripts,  178 

4.  Forms  of  cei-tificates  to  authenticate  transcripts,  179 
6.     Form  of  scire  facias  issued  upon  the  transcript  or  docket 

of  another  justice.  180 

6.  How  the  scire  facias  must  be  served,  180 

7.  Form  of  docket  entry  in  proceedings  by  scire  facias,  181 


i'lr  CONTENTS. 

PART  SECOXD. 

TITLE  I.  P»ge. 

ACCORD  AND  SATISFACTION,  185 

TITLE  n. 

ACCOUNT  BOOK,  187 

TITLE  III.      - 

ACKNOWLE0UEMENT  OF  DEEDS,  191 

TITLE  IV. 

ADMINISTRATORS  AND  EXECUTORS,  192 

TITLE  V. 

APPRENTICES. 

Sec.  1.     AMio  may  be  bound  out  to  service,  and  for  what  time,  195 

2.  ^\  lio  may  bind  out  infants,  195 

3.  AVhat  statements  and  covenants  an  indenture  of  appren- 

ticeship must  contain  and  how  executed,  196 

4.  When  the  indenture  must  be  recorded,  and  the  effect  of 

not  recording,  197 

5.  Of  the  dissohition  of  the  apprenticeship,  197 

6.  Of  the  rights  of  the  apprentice,  197 

7.  Of  the  rights  of  tlie  master,  199 

8.  Of  enticing  away,  employing,  or  harboring  apprentice,  &c.  200 

TITLE  VL 

ARBITRATION. 

Sec.  1.     Of  arbitration  before  a  justice,  202 
(A)    W/icn  and  Juno  a  cause  pendhiff  7nay  he  snhmiHed 
to  ai-hitrators,  and  the  forms  of  I  he  citation,  oat  lis 
and  award,  202 
(7?)  Hoio  an  award  may  he  set  aside,  204 
2.     The  force  and  effect  of  an  award  as  an  instrument  of  evi- 
dence, 205 
{A)  General  requisites  of  an  award,  to  render  it  valid,  205 
{B)   When  an  award  is  void,  206 
(C)  The  effect  of  an  award,  when  valid,  208 

TITLE  Vn. 

ASSIGNMENT  OF  CLAIMS  NOT  NEGOTIABLE. 

Sec.  1.     "What  claims  are  negotiable,  and  the  meaning  of  the  term 

"choses  in  action,"  210 

2.  How  choses  in  action  may  be  assigned,  211 

3.  Of  the  rights  of  an  assignee  of  a  chose  in  action  against 

the  debtor,  211 

4.  Of  the  rights  of  the  assignee  of  a  chose  in  action  against 

the  assignor,  212 

5.  Of  the  right  of  the  debtor  where  a  chose  in  action  has 

been  assigned,  215 

6.  Of  the  liability  of  the  assignor  and  assignee  for  costs,  216 


CONTENTS.  Xni 

TITLE  VIII. 

ATTACHMENT.  Page. 

Sec.  1.  In  what  cases  an  attachment  may  issue,  217 

2.  Of  the  affidavits  of  the  creditor  to  procure  process,  218 

3.  Of  the  issuing  of  the  writ,  and  the  nature  thereof,  218 

4.  Of  proceedings  by  the  plaintift'  after  the  writ  is  issued  and 

before  trial,  219 

6.     Of  the  service  and  return  of  the  attachment,  where  no  one 

prefers  a  claim  to  the  property  attached,  219 

6.  Of  the  mode  of  proceeding  and  forms  where  property  at- 

tached is  claimed  by  a  third  person,  221 

7.  Of  proceedings  against  the  garnishee,  and  forms  therefor,     225 

8.  Of  proceedings  on  the  writ  of  attachment  after  its  return,      227 

9.  Forms  of  affidavits  for  a  writ  and  for  proceedings  against  a 

garnishee,  229 

10.  Form  of  a  writ  of  attachment,  230 

11.  Form  of  a  warrant  against  a  garnishee,  231 

12.  Form  of  notice  of  the  issuing  of  attachment,  231 

13.  Constable's  return  to  a  writ  of  attachment,  232 

14.  Form  of  bond  to  the  constable  for  the   re-delivery  of  pro- 

perty, _  233 

15.  Docket  entries  where  there  is  no  garnishee,  233 

TITLE  IX. 

BAILMENT. 

Sec.   1.     Where  goods  are  deposited  to  be  kept  without  reward,  and 

to  be  returned  when  the  bailor  shall  require  it,  238 

2.  Where  a  person  delivers  goods  to  another  to  be   carried 

without  reward,  or  to  have  some  act  performed  about 
them  without  reward,  240 

3.  Where  a  person  borrows  an  article  to  be  used  by  him  for  a 

limited  time  without  paying  for  the  use,  241 

4.  When  goods  are  delivered  by  a  debtor  to  his  creditor,  to  be 

kept  as  a  security  for  a  debt  or  engagement,  242 

5.  Where  animals,  goods,  or  other  things,  are  delivered  to  a 

person  to  use  for  a  temporary  period,  and  for  which  use 

he  is  to  pay  a  compensation,  244 

6.  Where  articles  are  delivered  to  a  person  that  he  may,  for  a 

compensation,  bestow  work  and  labor,  or  care  and  pains 
upon  and  about  them,  245 

7.  Of  the  rights,  duties,  and  liabilities  of  the  carriers  of  goods 

for  hire,  248 

(A)  Who  is  not  a  common  carrier,  and  the  Halillty  of  a  pri- 
vate carrier,  243 
(J5)  Who  is  a  common  carrier,  248 

(C)  W/iat  are  his  duties,  249 

(D)  What  are  the  risks  for  tvhich  he  is  liaUe,  249 
(£)  As  to  the  commencement  and  ter-mination  of  the  risk  of 

common  carriers,  251 
{F)  Of  the  natxire  and  effect  of  notices  given  hj  common  car- 
riers, limiting  their  liahility  for  the  loss  of  goods,  253 
(H)  Of  the  lien  of  the  carrier  for  freight,  253 
(J)  now  the  value  of  lost  goods  is  to  he  estimated,  266 


XIV  CONTENTS, 

Page. 

Sec.  8.     Of  the  rights,  duties,  and  liabilities  of  carriers  of  passcn- 

fjcrs,  255 

(A)  Their  (lufies  in  the  commencement  of  the  journey,  255 

{B)  Their  duties  on  the  progress  of  the  journey,  256 

(C)  The  termination  of  the  journey,  257 

(D)  As  to  the  liabilities  of  jjassenger  carriers,  257 
{E)   The  rights  of  paf^scngcr  carriers,  258 

Sec.  9.     Of  the  rights,  duties,  and  liabilities  of  inn-keepers,  259 


TITLE  X. 

BANKS,  264 

TITLE  XI. 

BASTARDy,  265 

TITLE  XII. 

CONSTABLES. 

Sec.  1.  How  inducted  into  office,  with  the  form  of  his  official  bond,  270 

2.  In  what  cases  a  justice  may  appoint  a  constable,  271 

3.  The  general  powers  and  duties  of  constables,  271 

4.  Procoj'dings  against  a  constable  and    his  sureties    for  the 

misconduct  of  the  former,  with  forms  of  process  and 
docket  entries,  272 


TITLE  XIII. 

CONTEMPTS,  278 

TITLE  XIV. 

CONTRACTS  GENERALLY. 

Sec.   1.     Defmition  —  contracts  by  parol  —  specialties  —  executed  — 

executory — express — implied,  281 

2.  Of  the  want  of  understanding  to  make  a  contract,  284 

3.  Of  restraint  by  imprisonment,  284 

4.  Of  restraint  by  threats,  285 

5.  Of  the  consideration  of  a  contract,  285 

6.  Of  an  illegal  consideration,  288 

7.  How  contracts  should  be  construed  and  performed,  290 

8.  Of  the  alteration  of  contracts,  291 

9.  Of  contracts  not  to  be  performed  within  one  year,  292 


TITLE  XV. 

coroner's  INQTTEST,  293 

TITLE  XVI. 

ELECTIONS. 

Sec.  1.     The  mode  of  contesting  elections,  and  forms  therefor,  297 

2.  Of  the  opening  and  certifying  the  returns  of  an  election,       299 

3.  Form  of  oath  to  be  administered  to  the  judges  and  clerks  of 

elections,  299 


CONTENTS.  XV 

TITLE  XVII.  rape. 

FORCIBLE  ENTRY  AND  DETAINER,  300 

Sec.  1.     When,  in  what  cases,  and  where,  an  action  for  forcible 

entry  and  detainer  may  be  brought,  301 

2.  When  notice  to  quit  is  necessary,  and  how  given,  301 

3.  Of  the  written  complaint  of  the  plaintiff,  302 

4.  Of  the  issuing,  service,  and  return  of  the  process,  302 

5.  What  proceedings  are  had,  after  the  process  is  issued, 

and  before  the  trial,  302 

6.  Of  the  evidence  and  proceedings,  on  the  trial,  303 

(A)   When  the  suit  is  against  a  tenant  for  holding  over 

his  term,  303 

{B)  Of  the   proceedings  on  trial,  when  the  j^laintiff 

claims  as  purchaser  under  an  execution,  304 

(C)  Of  the  proceedings  on  the  trial  when  the  defendant 

is  a  settler,  or  occujyier,  without  any  color  of  title,  306 

7.  Of  the  verdict  of  the  jury,  306 

8.  Of  the  judgment  of  the  justices,  and  execution  thereon,  307 

9.  Of  appeal,  and  certiorari,  307 
10.     Forms,  307 

{A)  Notice  to  leave  the  premises,  307 
{B)  Form  of  the  complaint,  for  forcille  entry  and  de- 
tainer, 308 
(C)  Form  of  comjjlaint,  by  p)urchaser  on  execution,  for 

a  forcible  detainer,  308 
{D)  Form  of  complaint  by  landlord  against  tenant,  309 
(£)  Form  of  bond  for  costs,  ichen  the  plaintiff  is  a  non- 
resident of  the  county,  309 
{F)  Form  of  warrant  or  venire  for  a  jury,  310 
(G)  Forin  of  sinnmons  to  the  defendant,  311 
(H)  Form  of  the  oath,  to  be  administered  to  the  jury,  31 1 
(7)  Forms  of  verdicts,  311 
{K)  Forms  of  judgments,  313 
(L)  Form  of  the  writ  of  restitution,  313 
[M)  Docket  entry,  314 

TITLE  XVIII. 

FRAUDS. 

Sec.  1.     When  a  suit  may  be  maintained  for  the  assertion  of  a  false- 
hood, 316 
2.     Of  sales,  &c.  made  by  debtors  to  defraud  creditors,  318 

TITLE  XIX. 

GUARANTY,  AND  PRINCIPAL  AND  SURETY. 

Sec.  1.     Of  the  manner  in  which  sureties  may  contract,  321 

2.  What  promises  come  within  the  statute,  and  must  be  in 

writing,  and  what  do  not,  322 

3.  Of  the  consideration  for  the  promise  of  the  surety,  325 

4.  What  is  a  suflicient  agreement  in  writing,  under  the  statute,     326 

5.  Of  the  extent  of  the  contract  of  surety,  328 

6.  How  the  surety  may  be  discharged  by  the  acts  of  the  cre- 

ditor, 328 


XVI  CONTENTS. 

Pago. 

Sec.  7.     Of  the  ri<iht  and  remedy  of  the  surety  against  the  principal  330 
8.     Of  contribiUiou,  331 


GUAUPI.VN  AND  WARP, 


TITLE  XX. 

333 


TITLE  XXL 

335 


nUSB^lJs'D  AND  WIFE, 

Sec.  1.     Of  the  right  which  the  husband  acquires  in  the  property  of 

the  wife,  336 

(A)  As  to  the  real  estate  of  the  loife,  336 
{B)  As  to  leases,  and  the  like,  belonging  to  the  wife,  336 

(C)  As  to  debts  due  to  the  wife,  337 

(D)  As  to  the  personal  j^roperty  of  the  wife,  338 

2.  Of  the  duties  and  liabilities  whicli  the  husband  assumes  by 

the  marriage,  338 

{A)  For  the  contracts  and  debts  of  the  wife  before  mar- 
riage, and  also  for  trespasses  and  other  injuries,        338 

(jB)   When  he  is  liable  for  necessaries  furnished  her,  338 

(C)  As  to  crimes  and  injuries  committed  by  her,  339 

3.  Of  the  power  of  the  wife  to  act  without  her  husband,  340 

4.  Incompetency  of  husband  and  wife  as  witnesses,  340 

5.  Of  actions  brought  by  husband  and  wife,  341 

{A)    Where  they  must  join  as  plaintiffs,  341 

(B)  Where  the  husband  must  sue  alone,  342 

(C)  Where  the  wife  7)iay  sue  alone,  342 

(D)  When  the  husband  and  wife  may  join,  or  not,  343 

(E)  Who  7nust  sue  upon  the  death  of  the  husband  or  wife, 

and  effect  of  their  death  upon  suits  pending,  343 

6.  Actions  against  husband  and  wife,  344 

{A)  When  they  must  be  joined  as  defendants,  344 

{B)  When  the  husband  must  be  sued  alone,  S4:4: 

(C)  When  the  u-ife  may  be  sued  alone,  344 

(D)  Who  to  be  sued,  upon  the  death  of  the  husband  and 

wife,  and  the  effect  of  such  death  upon  suits  pending,  345 

7.  Of  the  effect  of  improperly  joining  or  onnitting  husband  or 

wife  as  plaintiffs  or  defendants,  345 

8.  Of  the  etrect  of  the  marriage  of  a  female  upon  a  suit  brought 

by,  or  against  her,  345 


TITLE  XXII. 

INFANTS. 

Sec.   1.     Who  are  infants,  346 

2.  Of  the  liability  of  an  infant  for  necessaries,  346 

3.  As  to  other  contracts  of  an  infant,  347 

4.  Of  the  confirmation  of  a  contract  by  an  infant,  after  he  ar- 

rives at  full  age,  348 

5.  Of  the  liability  of  a  person  who  contracts  with  an  infant,  348 

6.  How  infants  should  sue  and  be  sued,  349 


CONTENTS.  XVII 

TITLE    XXIV.  Page. 

INTEREST. 

Sec.  1 .     Of  the  rate  of  interest,  and  the  construction  of  the  statute  in 

relation  thereto,  350 

2.  Of  the  mode  of  computing  interest,  352 

(^4)   Where  payment  is  made  before  the  debt  is  due,  352 
{B)    Where  payments  exceeding  the  interest  are  made 

after  the  debt  is  due,  352 

(C)   Where  ilw  payment  is  less  than  the  interest  due,  352 

3.  Where  interest  upon  interest  may  be  allowed,  354 

TITLE  XXV. 

LIENS,  355 

TITLE  XXVI. 

LIMITATION  OF  CIVIL  ACTIONS. 

Sec.  1.     Within  what  time  actions  must  be  commenced,  358 

2.  At  what  period  the  statute  begins  to  run,  358 

3.  Of  the  exceptions  in  the  statute,  and  what  acts  prevent  it 

from  operating,  or  running,  360 

TITLE  XXVII. 

MAEELAGES,  363 

TITLE  XXVIII. 

PAEENT  AND  CHILD,  365 

TITLE  XXIX. 

PAETNTIESHIP. 

Sec.  1.     What  constitutes  a  partnership,  367 

2.  Extent  of  personal  liability  of  each  partner  for  the  partner- 

ship debts,  and  \  ho  may  be  charged  as  a  partner,  368 

3.  Power  of  each  partner  to  bind  the  firm,  369 

{A)  By  bill  of  exchange,  or  promissory  note,  369 

{B)  Of  one  partner  binding  the  firm  by  sale,  contract, 

deed,  ^c.  370 

4.  Of  the  dissolution  of  a  partnership,  and  the  power  of  a 

partner  after  the  dissolution,  372 

5.  Actions  by  and  agauist  pctriuurs,  374 

6.  Execution  against  partners,  375 

TITLE  XXX. 

PAYMENT. 

Sec.  1.     The  difference  between  a  payment  and  a  set  off,  376 

2.     Application  of  payments,  and  to  whom  to  be  made,  376 

TITLE  XXXI. 

PEOraSSOEY  NOTES,  NEGOTIABLE  BONDS,  AND  BILLS  OF  EXCHANGE,  380 

Sec.  L     Form  of  a  bill  of  exchange,  promissory  note,  and  negotia- 
ble bond,  and  the  parties  thereto  described,  381 
2.     Of  the  general  requisites  of  negotiable  bonds,  bills  of  ex- 
change and  promissory  notes,                                              385 


XVIII  CONTENTS. 

Page. 

[Sec.  2.]      (A)  Of  iJiP  dale  of  these  Inslrumcnts,  385 

{B)   To  whom  jHiijcthlc,  385 

(C)  The  words  '■' order ^''  '■'■hearer^''  or  "assigns,"'^  386 

(D)  Where  pai/ah/e,  386 

(E)  Li  what  jxiijable,  387 
{F)  When  pdi/atde,  387 
(G)  The  words  "^for  rahie  reeeh'cd,''^  388 
(H)  What  wo7-(ls  arc  siij/icicuf  to  constilute  a  pro7nise,  ^'C.  388 
(7)  Blank  signatures,  delivered  to  he  filed  vj),  389 

3.  How  these  instruments  arc  transferred,  389 

4.  A\'ho  may  transfer  these  instruments,  390 

5.  Of  tlie  indorsement,  391 

{A)  Its  form,  391 

{B)  Of  an  indorsement  in  blank,  and  its  legal  effect,  392 

(C)  Of  an  indorsement  in  full  and  its  effect,  393 

(D)  Of  a  restrictive  indorsement,  394 
(£)  Of  the  form  of  an  indorsement  of  a  note,  hill,  or 

bond,  where  demand  and  notice  of  non-2>ayment 

are  vxived,  394 

(F)  Form  of  indorsement  leithout  recourse  on  the  indorser,  394 

6.  Of  the  rijihts  and  obligations  of  the  drawer  of  a  bill  before 

acceptance,  395 

7.  Of  tlie  i)resentment  of  a  bill  for  acceptance,  395 

8.  Of  the  rights  and  obligations  of  the  acceptor  of  a  bill,  and 

the  maker  of  a  note  or  bond,  397 

9.  Of  the  rights  and  obligations  of  the  indorser  of  a  bill,  note, 

or  bond;  and  of  the  drawer  of  a  bill,  after  acceptance,  398 

10.  At  what  time  demand  of  payment  must  be  made  from  the 

drawee  or  acceptor  of  a  bill,  or  the  maker  of  a  note  or 

bond,  so  as  to  make  the  indorsers,  &c.  liable,  401 

11.  Of  the  mode  in  which  demand  must  be  made,  403 

12.  Of  the  notice  of  demand  and  non-payment  to  be  given  to 

the  drawer  of  a  bill,  and  to  the  indorser  of  a  note,  bond, 

or  bill,  so  as  to  make  the  indorsers,  &c.  liable,  405 

,  {A)  How  the  notice  should  be  given,  405 

(J5)   What  the  notice  should  contain,  and  the  form  thereof  405 

(C)  When  the  notice  must  be  given,  406 

(D)  To  whom,  and  by  ivhoin,  notice  should  be  given,  407 

13.  In  what  cases  demand,  and  wlicn  both  demand,  and  notice  of 

non-payment,  will  be  excused,  and  when  not,  407 

14.  In  what  cases  the  want,  or  failure,  of  consideration,  &c., 

may  be  set  up  as  a  defence,  410 

15.  How  the  indorsers  &c.,  may  be  discharged,  by  one  party 

giving  time  &c.  to  another,  414 

16.  Of  tiic  rights  and  obligations  of  parties  to  a  lost,  stolen,  or 

forged  note,  bond,  or  bill,  416 

17.  Of  the  rights  and  obligations  of  parties  to  a  bank  check,  419 


TITLE  XXXII. 

SALES. 

Sec.  1.     "When  a  sale  is  complete,  422 


CONTENTS. 

Sec.  2.     Of  the  place  of  demand  and  delivery, 

3.  Of  the  mode  and  time  of  day,  in  which  a  demand  and  ten- 

der should  be  made, 

4.  Of  the  performance  of  a  contract  of  sale  and  cflect  of  a  de- 

livery of  a  part  of  the  property, 

5.  Of  the  effect  of  a  tender  upon  the  rights  of  the  buyer  and 

seller;  and  of  the  damages  in  such  case,  and  where  no 
tender  is  made, 

6.  Of  the  remedy  for  defects  in  the  quality  and  title  of  pro- 

perty, 

(A)  Of  fraudulent  concealment  or  misrepresentation  of  the 
(jualifij  of  things  soM, 

(B)  Of  the  different  kinds  of  loarranty, 

(C)  Of  implied  loarranties, 

(D)  Of  an  express  warranty, 

TITLE  XXXIIL 

SET  OFF. 

Sec.   1.     In  what  actions  a  set  off  may  be  allowed, 
2.     What  demands  may  be  set  otT, 


STRAYS, 


TENDER. 


TITLE  XXXIV. 


TITLE  XXXV. 


Sec.  L     In  what  cases,  and  at  what  lime,  a  tender  may  be  made 
with  effect, 

2.  By  whom,  and  to  whom,  tender  must  be  made, 

3.  In  what  kind  of  money  a  tender  should  be  made, 

4.  What  amount  must  be  tendered, 

5.  In  what  cases  the  money  must  be  actually  produced, 

6.  A  tender  must  be  unconditional, 

7.  Of  the  effect  of  a  tender, 
{A)  Its  general  effect, 

\B)  Of  the  effect  of  a  tender,  when  the  contract  is  for  the  pay- 
ment of  money,  and  tender  is  made  before  the  commence- 
ment of  the  suit, 

(C)  Where  the  contract  is  for  the  payment  of  a  sum  of  money 

certain,  and  tender  is  made  after  suit  is  brought, 

(D)  Wlien  the  claim  is  for  damages  arising  from  a  negligent 
or  involuntary  tresjmss  upon  lands, 

{E)  When  the  suit  is  on  a  contract  for  work  and  labor,  or  for 

the  payment  of  jjroperty, 
{F)  Whe7i  suit  is  brought  upon  other  contracts,  or  for  other 

wrongs  or  injuries  than  those  hereinheforc  mentioned. 


TITLE  XXXVI. 


TRESPASS  UPON  LANDS. 


Sec.   \.  Defmition, 

2.  What  amounts  to  a  licence  to  enter  upon  land, 

3.  Of  the  possession  necessary  to  maintain  this  action, 

4.  Of  the  defence,  &:c., 


XIX 

Page. 

425 


427 
428 

429 

431 

432 
435 
436 
438 


441 
441 


445 


455 
456 
456 
457 
457 
458 
458 
458 


458 
459 
459 
460 
461 


463 
463 
465 
467 


XX  CONTENTS. 

TITLE  XXXVII. 

Pase. 
TRUL  OF  THE  RIGHT  OF  PROPERTY  TAKEN  ON  EXECUTION  BY  A  SHERIFF,  468 

TITLE  XXXVIII. 

WORK  AND  L.^iBOR,  471 

PART   THIRD, 


CHAPTER  I. 

PROCEEDINGS  IN  CRIMINAL  CAUSES. 

Sec.   1.     Jurisdiction  of  justices  in  criminal  cases,  477 

2.  Of  arrests  witliout  warrant,  478 

3.  Forms  of  affidavits  whereon  to  issue  common  state  war- 

rants, and  a  search  warrant,  479 

4.  Of  the  issuing  of  a  common  state  warrant,  and  search  war- 

rant, and  the  forms  thereof,  480 

5.  Of  the  service  and  return  of  a  common  state  warrant,  and 

a  search  warrant,  482 

6.  Of  the  adjournment  of  the  trial  or  examination,  and  the 

proceedings  thereon,  with  forms,  484 

7.  Of  the  trial  or  examination,  and  of  the  proceedings  when 

the  defendant  forfeits  his  recognizance,  485 

8.  Of  the  final  recognizance  of  the  accused  and  witnesses,  and 

of  the  commitment,  with  the  forms  thereof,  48G 

9.  Of  the  docket  entries,  and  transcripts,  and  forms  thereof,       489 

CHAPTER  II. 

CRIMINAL   CAUSES. 

Sec.   1.     Qui  tarn  actions,  and  actions  for  penalties,  491 

2.  Assault  and  battery,  492 

(A)  What  is  an  assault,  492 

\B)  What  is  ahattery,  493 

(C)  Of  the  defence,  and  j^unishmenf,  493 

3.  Fighting,  challenging  to  fight,  and  affrays,  494 

4.  Proceedings  requiring  the  accused  to  enter  into  recogni- 

zance to  keep  the  peace,  &c.  495 


PART    FOURTH. 


FORJIS  OF  COVEYANCES,  AGREEMENTS,  «fcc.,  601 

Sec.   1.  General  warranty  deed,  504 

2.  A  release,  or  deed  of  quit  claim,  505 

3.  Mortgage,  606 

4.  Lease,  606 

5.  Powers  of  attorney  to  sell  and  lease  lands,  607 

6.  Power  of  attorney  to  collect  debts,  607 


CONTENTS.  XXt 

Page. 

Sec.  7.     Warrant  of  attorney  to  confess  judgment  in  the  court  of 

common  pleas  or  supreme  court,  608 

8.  Warrant  of  attorney  to  confess  judgment  before  a  justice 

of  the  peace,  608 

9.  Arbitration  bond  and  award,  508 

10.  Common  bond,  with  a  condition,  510 

11.  Indentures  of  apprenticeship,  510 

12.  Bill  of  sale,  and  mortgage  of  goods  and  chattels,  512 

13.  Promissory  note,  512 

14.  Bill  of  exchange,  512 

15.  Release  and  receipts,  513 

16.  Agreements,  513 

17.  Last  will  and  testament,  618 


PART  FIRST. 


PART    FIRST. 

CHAPTER  I. 
JUSTICES   OF   THE   PEACE. 

SECTION    I.  NUMBER    OF    JUSTICES    IN    EACH    TOWNSHIP. 

II.  TERM    OF    OFFICE. 

III.  WHEN    AND    HOW    ELECTED. 

IV.  HOW    THEIR    ELECTION    MAY    BE    CONTESTED. 

V.  OF    THEIR    OFFICIAL     OATH    AND    BOND,     AND    THE    FORMS 

THEREOF. 

VI.  RESIGNATION,  AND  WHEN  THE  OFFICE  IS    DEEMED  VACANT. 


Sec.    I. NUMBER  OF  JUSTICES  IN  EACH  TOWNSHIP. 

This  is  determined  by  the  court  of  common  pleas  when  a  new 
township  is  set  off';  but  the  court  at  any  time  afterwards,  may  in- 
crease or  diminish  the  number,  at  their  discretion.^  Public  notice 
must  be  given,  in  the  township,  of  an  application  to  the  court,  for 
an  additional  number  of  Justices. ^(1) 

The  decrease  or  curtailment  ordered  by  the  court,  is  not  effected 
by  depriving  any  one  of  his  commission  ;  but  all  continue  to  act, 
until  the  expiration  of  their  term  of  office.*^ 

Sec.    II. TERM  OF  OFFICE, 

A  Justice  holds  his  office  for  the  term  of  three  years,''  w"hich,  in 
practice,  is  computed  from  the  date  of  his  commission.  If,  however, 
he  continues  in  office  by  re-election,  he  may  proceed  with  matters 
pending  before  him,  in  the  same  manner  as  if  his  former  term  of 
office  had  not  expired.® 

(a)  Stat.  498,  $  1-3  (il)  Const.  Oliio,  Art.  .S,  ij  11. 

(b)  Id.  lb.  $3.  (c^  Stat.  507,  $  10. 

(c)  Id.  lb. 


(1)  'i'lie  statute  does  not  dii'  '  I,  liow  or  wlicii  such  notice  slioiikl  lie  given. 
Notices,  set  up  in  three  of  the  most  public  places  within  the  townsiiip,  tliirty  days 
before  the  term  of  the  court  at  which  the  appI'"ution  is  made,  would  undoubtedly 
be  sufficient. 

i 


2  JUSTICES now    ELECTED.  [Ft't,    1,   Cll.    i^ 

Sec.    III. WHEN  AND  HOW  ELECTEP. 

When  a  new  township  is  set  off,  tlie  court  of  common  pleas  de- 
signate the  time  for  the  first  election;*  and  in  such  dase,  if  there  bd 
no  trustees  of  the  new  township,  tlie  clerk  of  the  court  gives  notice 
of  the  time  and  place  of  the  election,  by  advertisements,  set  up  in 
three  public  places  in  the  township,  not  less  than  ten,  nor  more  than 
fifteen  days  previous  to  the  election.''  But  if  there  are  trustees, 
they  give  the  notice  in  the  manner  hereinafter  mentioned. 

The  time  and  place  of  holding  elections,  at  all  subsequent  periods, 
are  determined  by  the  trustees.'^  The  clerk  of  the  township,  within 
three  days  after  he  receives  notice  from  a  justice  of  the  peace  of  his 
resignation,*^  and  sixty  days  prior  to  the  expii-ation  of  the  commis^ 
sion  of  a  justice,*  gives  written  notice  to  tlie  trustees  of  the  town- 
ship, of  the  time  of  such  resignation,  or  expiration  of  such  com- 
mission. The  trustees,  upon  receiving  the  notice,  and  when  a  va- 
cancy happens  either  by  death,  removal,  absence  at  any  one  thne 
for  the  space  of  six  months,  or  otherwise, '^  give  notice  of  the  time 
and  place  of  holding  an  election,  by  advertisements,  set  up  in  three 
public  places  in  the  township,  not  less  than  fifteen,  nor  more  than 
twenty  days,  previous  to  the  time  designated  for  such  election.^ 
Where  the  term  of  office  of  a  justice  is  about  to  expire,  the  election 
may  be  held  before  the  vacancy  happens.^ 

The  mode  of  conducting  the  election  of  justices  of  the  peace  and 
members  of  the  general  assembly  are  the  same.* 

Sec.  IV.  —  HOW  their  election  may  be  contested. 

Any  candidate  or  elector  of  the  township,  may  contest  the  elec- 
tion.'' The  contestor  must,  within  six  days  after  the  day  of  the 
election,  make  known  his  objections,  to  one  of  the  judges  of  the 
court  of  common  pleas  of  the  county.'  The  judge  directs  the  clerk 
of  the  court  to  withhold  the  return  of  the  election,  until  the  contest 
is  decided.;  and  he  also  communicates  to  the  person  whose  election 
is  contested,  the  name  of  the  contestor,  the  points  upon  which  the 
election  is  contested,  and  the  time  and  place  within  the  township, 
where  the  same  will  be  determined.'"  The  day  named  for  the  de- 
termination of  the  contest,  must  be  within  fifteen  days  from  the  day 
of  election;  at  the  same  time  allowing  the  person  elected,  five  days 
notice  of  the  trial."'  The  judge,  on  the  same  day  that  he  issues  the 
above  mentioned  notice,  must  appoint  and  issue  his  summons  for 
three  freeholders  of  the  county,  who  do  not  reside  in  the  town- 
ship where  the  election  was  held,  to  appear  at  the  time  and  place 
fixed  for  the  trial."  The  summons  may  be  directed  to  any  constable 
of  the  county,  who  must  serve  it  at  least  three  days  before  the  time 
appointed  for  the  trial,  and  return  it  at  the  time  and  place  named 

(a)  Stat.  498,  $  1.  (li)  Slat.  501.  $  12. 

(b)  Id.  lb.  (i)  Id.  lb.  '^  13.      As  to  the  mode  in  wliicli  the 

(c)  Id.  lb$i.  election  of  nicmhcrs  of  llic  General  Assembly 

(d)  Id.  501,  V  14.  is  conducted,  sec  Stat.  p.  303. 

(e)  M.  lb.  $12.  (k)  Id.  499,  $  4- 

(f)  Id.  408,  $2.  (1)  Id.  lb. 
(^)  Id.  lb.  (m)  Id.  lb. 

(n)  Id.  lb.  $5. 


§3,  4,   5.]  JUSTICES ELFXTION,    HOW    CONTESTED.  3 

for  the  meeting  of  the  freeholders.  The  judge  may  issue  subpoenas, 
for  witnesses,  directed  to  any  constable  of  the  county,  who  must 
duly  serve  and  return  the  same,  at  the  time  and  place  therein  named.* 
If  the  judge  fail  to  appear  at  the  time  and  place  of  trial,  any  disinter- 
ested justice  of  the  peace  of  the  county,  may  perform  all  the  duties 
hereafter  mentioned,  as  required  of  a  judge."" 

If  the  freeholders  do  not  attend,  the  judge  or  justice  may  appoint 
others  in  their  place.''  They  are  sworn  to  try  the  contest  agreeably 
to  the  evidence,  and  the  witnesses  are  examined  under  oath,  and 
their  testimony  confined  solely  to  the  original  points  of  objection 
made  by  the  contestor.*" 

The  "election  cannot  be  set  aside  by  the  freeholders  '•'•.merely  be- 
cause illegal  votes  were  given,  if  it  appear  that  the  person  whose 
election  is  contested,  has  the  greatest  number  of  the  legal  votes 
given,  after  deducting  all  illegal  votes  given,  when  there  is  no  evi- 
dence for  whom  such  illegal  votes  were  given,  as  well  as  all  illegal 
votes  which  shall  appear  to  have  been  given,  for  the  person  whose 
election  is  contested.'"^ 

The  freeholders  sign  and  seal  their  decision,  and  the  judge  attests 
it.  If  by  the  decision  there  is  a  vacancy  in  the  office  contested,  the 
judge,  within  three  days  thereafter,  transmits  a  copy  of  the  decision 
to  the  trustees  of  the  township,  who  give  notice  in  the  manner 
heretofore  mentioned,  of  another  election.  If  the  election  is  deter- 
mined to  be  valid,  the  judge  transmits  a  copy  of  the  decision,  to  the 
clerk  of  the  court  of  common  pleas,  who  then  proceeds  as  if  no  con- 
test had  taken  place,*^  If  the  election  is  not  set  aside,  the  judge 
renders  judgment  against  the  contestor  for  the  costs,  and  issues  ex- 
ecution to  any  constable  of  the  township. ^ 

From  this  judgment,  there  is  no  appeal.^  If  the  election  is  set 
aside,  the  township,  by  the  order  of  the  trustees  on  the  township 
treasurer,  pays  the  costs.  The  judge,  or  justice,  and  freeholders, 
each  receive  one  dollar  per  day,  and  the  witnesses  and  constables, 
the  same  fees  as  in  other  cases.^ 

Sec.  V. — or  their  official  oath — bond,  and  forms  thereof. 

Immediately  upon  the  reception  of  the  commission  from  the  gov- 
ernor, the  person  elected  must  take  an  oath  of  office  before  the 
clerk  of  the  court  of  common  pleas,  or  a  justice  of  the  peace  of  the 
county.  If  the  oath  is  administered  by  a  justice,  he  must  transmit 
a  certificate  thei'eof  to  the  clerk  of  the  court  within  ten  days. (2) 

(a)  Stat.  499,  ^6.  (c)  Id.  500,  $7.  (e)  Id.  500,  $7. 

(b)  Id.  500,  $9.  (d)  Id.  $8.  (g)  Id.  ^10. 


(2)  Stat.  500,  §11.     The  certificate  may  be  in  llie  form  following: 
The  Slaie  of  Ohio,   County,  ss. 

Be  it   remembered  that  on  this day  of in  the  year ,  before  me, 

the  undersigned,  personally  appeared  G II ,   of township,  in  said 

county,  who  made  solemn  oath  tliat  he  would  support  the  constitution  of  the  Uni- 
ted States,  and  the  constitution  of  tl»e  state  of  Ohio;  and  that  as  justice  of  the 
peace  in  and  for  said  township  and  county,  he  would  administer  justice  witiiout 
respect  to  persons,  and  do  equal  right  to  tlie  poor  and  to  the  rich,  and  faithfully 


4  JUSTICES THEIR  OFFICIAL  BOND,  &C.    [P/7.  1,  Ch.  1,  §6. 

The  person  elected  must  within  ten  days  after  taking  the  oath  of 
office,  enter  into  bond,  (to  be  approved  of  l)y  the  trustees  of  the 
townsliip,)  i)ayab]e  to  the  state  of  Ohio,  with  at  least  two  sufficient 
sureties,  in  a  penalty  of  not  less  than  five  hundred  dollars,  nor  more 
than  three  thousand"  dollars,  at  the  discretion  oi'  the  trustees,  condi- 
tioned, to  well  and  truly  pay  over  according  to  law,  all  moneys 
which  may  come  into  his  hands  by  virtue  of  his  commission.*  The 
bond  must  be  deposited  with  the  township  treasurer.*  The  clerk 
of  the  township  should  enter  upon  the  township  records  the  date, 
amount,  and  the  names  of  the  obligors  of  the  bond,  and  the  ajiproval 
thereof  by  the  trustees. (3) 

If  a  person  elected  to  the  office  of  a  justice,  neglect  or  refuse  to 
enter  into  such  bond  within  ten  days  after  taking  the  oath  of  office, 
or  neglect  or  refuse  to  otherwise  officially  qualify  himself,  the  of- 
fice becomes  vacant,  and  the  trustees  must  give  notice  of  a  new 
election.** 

Within  thirty  days  after  receiving  a  commission,  the  justice  must 
transmit  to  the  clerk  of  the  township  the  date  thereof 

Sec.    VI. RESIGNATION,  AND  WHEN  THE  OFFICE  IS  DEEMED  VACANT. 

The  resignation  of  a  justice  must  be  made  to  the  clerk  of  the 
court  of  common  pleas,  and  the  justice  resigning,  must  at  the  same 
time  give  notice  thereof  to  the  clerk  of  the  township.*^ 

It  has  already  been  stated''  that  if  a  justice  neglect  or  refuse  to 
execute  an  official  bond,  with  approved  security,  within  ten  days 
after  having  taken  the  oath  of  office,  or  otherwise  neglect  or  refuse 
to  qualify  himself  by  taking  an  official  oath,  the  office  thereby  be- 
comes vacant.  So,' if  a  justice  is  absent  from  the  township,  at  any 
one  time,  six  months,  his  office  becomes  vacant.^ 

(a)  Stat.  500.  $11.  (c)  Id.  501,  $12  (p)  See  ante  p.  4. 

(b)  Id.  611.  §6,  and  500,  $11.  (d)Id.$14.  (g)  Stat.  498,  $2. 


and  impartially  discharge  and  perform  all  the  duties  incumbent  upon  him  as  a  jus- 
tice of  the  peace,  according'  to  the  best  of  his  skill  and  understanding.  In  testi- 
mony whereof,  I  have  hereunto  set  my  official  hand,  the  day  and  year  first  above 
written. 

G H ,  Justice  of  the  peace,  in  and  for 

county;  or  Clerk    of  the  Court  of  Common   Pleas  of 

county. 

(3)  The  official  bond  of  a  justice  may  be  in  the  form  following: 

Know   all  men    by    these   presents,    that  we,  G H ,  E F ,  and 

M T ,  are  held  and  firmly  bound  unto  the  state  of  Ohio  in  the  sum  of 

thousand  dollars;  for  the  payment  of  which,  we  jointly  and  severally  bind  ourselves. 
Sealed  by  us,  and  dated  this day  of ,  in  the  year  of  our  Lord,  one  thou- 
sand eiglit  liundred  and . 

Whereas  the  said  G H hath  been  duly  elected,   qualified  and  commis- 
sioned, a  justice  of  the  peace,  in  and  for  the  township  of ,  and  county  of , 

in  said  state,  for  the  term   of  three  years,  from  the day  of ,  in  the  year 

aforesaid.      Now  the  condition  of  the  above  obligation  is   such,  that  if  said  G 

H shall  well  and  truly  pay  over,  according  to  law,  all  moneys  v.hich  may  come 

into  his  hands  by  virtue  of  his  said  commission,  then  this  obligation  to  be  void, 
otherwise  to  be  and  remain  in  full  force. 

Seal. 
Seal. 
Seal. 


CHAPTER  II. 


JURISDICTION  IN  CIVIL  PROCEEDINGS. 


SECTION    r.       OF  THE  GENERAL  JURISDICTION  OF  A  JUSTICE,  AND  HEREIN, 

(A)  In  7vhat  cases  it  is  co-extensive  with  the  county. 

(B)  When  it  extends  to  more  than  one  hundred  dollars. 

(C)  In  lohat  cases  he  has  no  jurisdiction. 

II.      THE  CONSEQUENCES  OF  PROCEEDING  WITHOUT  JURISDICTION, 


Sec.    I. OF  THE    GENERAL  JURISDICTION  OF  A  JUSTICE. 

The  jurisdiction  of  a  justice  in  civil  proceedings,  is  in  general 
limited  to  the  township  wherein  he  is  elected  and  resides;  and  ex- 
tends to  all  suits  wherein  the  debt  or  damages  doth  not  exceed  one 
hundred  dollars.*  There  are  many  exceptions  to  this  rule,  and  they 
will  now  be  considered. 

{A)  In  ivhat  cases  it  is  co-extensive  with  the  county. 

The  power  and  jurisdiction  of  a  justice  is  in  general  co-extensive 
with  his  county  to  administer  oaths;  to  take  the  acknowledgment 
of  deeds;  to  issue  subpoenas  for  witnesses  in  causes  or  matters  pend- 
ing before  him;'^  to  solemn ''?;e  marriages;*^  to  hear  and  determine  an 
action  of  forcible  entry  and  detainer;^  to  issue  an  attachment,  and 
proceed  against  the  etfects  and  property  of  a  debtor  who  is  not  a 
resident  of  the  county,  or  has  absconded;^  to  issue  scire  facias,  and 
proceed  against  bail  on  his  docket  for  the  stay  of  execution;^  to 
issue  executions  upon  judgments  rendered  by  him;''  to  proceed 
against  constables  failing  to  make  return,  or  making  a  false  return, 
on  process  issued  by  such  justice;  or  failing  to  pay  over  money  col- 
lected on  an  execution  issued  by  such  justice :'  and  to  preside  and 
act  in  the  absence  of  a  judge  of  the  court  of  common  pleas,  upon 
the  trial  of  a  contested  election  of  a  justice  of  the  peace. 

So,  if  two  or  more  persons  are  jointly  or  jointly  and  severally 
bound  in  any  contract,  or  liable  for  any  injury,  and  reside  in  differ- 
ent townships  of  the  same  county,  a  justice  of  the  peace  of  the 
township  in  which  either  of  the  persons  liable  resides,  may  issue 
process  to  any  constable  in  his  township,  and  proceed  against  all 
the  defendants,  to  judgment  and  execution  as  in  other  cases.'' 

(a)  Stat.  506,  ^1.  (e)  Stat.  417,  ^1. 

(b)  Id.  II).  (g)  Id.  522,  $90. 

(c)  Id.  532,  $2.  (h)  Id.  II).  and  $91. 

(d)  2  Oliio  Rep.  255.  (i)  Stat.  522,  531. 

(k)  Stat.  508,512. 


6  JURISDICTION.  [Prt.   1,   Cfl.  2, 

So,  for  a  trespass  upon  personal  j)roj)erty,  suit  may  be  instituted 
and  judgment  had,  in  the  townsliip  where  the  trespass  was  com- 
mitted.' 

tSo,  where  there  is  no  justice  in  a  townsiiip;  or  if  there  be  one,  he 
is  interested  in  the  subject  matter  in  controversy,  or  stands  in  the 
relation  of  father,  father-in-law,  son,  son-in-law,  brother,  brother-in- 
law,  guardian,  ward,  uncle,  nepiiew,  or  cousin,  to  either  of  the  par- 
ties; in  such  case  process  may  be  issued  by  a  justice  of  an  adjoining 
township  of  the  same  county,  against  the  defendant,  and  a  trial, 
judgment,  and  execution  had,  in  like  manner  as  if  the  defendant 
resided  in  the  township  where  the  action  is  brought."  It  is,  in  gen- 
eral, only  in  the  cases  above  mentioned,  that  a  householder  or  free- 
holder resident  of  one  township  in  a  county,  can  be  sued  in  any 
other  township,  of  the  same  county;"  but  a  non-resident  and  also  a 
resident,  who  is  neither  a  householder  nor  freeholder  of  the  county, 
may  be  sued,  if  process  can  be  served  upon  him  within  the  town- 
shi])  where  it  is  issued. 

(B)  When  it  extends  to  more  than  one  hundred  dollars. 

■* 

If  a  debtor  appear  without  process  and  confess  the  debt,  judg- 
ment may  be  rendered  on  the  application  of  the  creditor,  for  any 
sum  confessed,  not  exceeding  two  hundred  dollars."  On  this  judg- 
ment, execution,  and  proceedings  to  judgment  and  execution 
against  the  bail  for  stay  of  execution,  may  be  had  as  in  other 
cases.''(l) 

It  may  be  proper  to  state  here,  that  when  the  balance  claimed  to 
be  due  on  any  open  or  unsettled  account,  or  on  any  bill  of  ex- 
change, note,  or  bond,  is  less  than  one  hundred  dollars,  the  party 
by  whom  such  balance  is  claimed,  may  commence  his  action  before 
a  justice,  who  may  hear  and  determine  the  whole  controversy,  and 
render  judgment  for  any  balance  found  due,  not  exceeding  one  hun- 
dred dollars.'! 

(C)  In  what  cases  a  justice  has  no  jurisdiction. 

A  justice  has  no  jurisdiction  (except  in  an  action  of  trespass) 
where  the  title  to  lands  and  tenements  may  be  drawn  in  question.' 

There  are  certain  injuries  to  real  estate,  for  which  an  action  of 
trespass  is  not  the  proper  remedy,  and  in  which  title  would  be 
drawn  in  question,  and  consequently,  suit  therefor  cannot  be  brought 
before  a  justice.  —  As,  where  A  builds  a  mill-dam  on  his  land,  and 
thereby  causes  the  water  to  flow  back  upon  the  lands  of  B;'  or,  A 
erects  a  tallow  furnace,  or  any  other  offensive  thing,   on  his  land, 

(1)  Slat.  508,  $12.  (o)  Stat.  506.  (r^  Stat.  525,  $105,  106. 

(in)  Id.  $12.  (p)  Id.  520,  6S5-6.  (s)  4  Oliio  Rep.  200;  but  see  7  Oli.  Rep. 

(n)  Id.  lb.  (q)  Id.  515,  $53.  Prt.  2,  230. 

(1)  If  judg-ment  be  confessed  for  two  hundred  dollars,  the  claim  against  the 
bail  for  stay  of  execution  will,  by  reason  of  the  accruin,^  interest  and  costs, 
amount  to  more  tlian  two  hundred  dollars;  but  the  statute  seems  to  authorize  the 
justice  to  proceed  in  such  case  against  tiie  bail,  for  the  full  amount  due  on  the 
judgment. 


§1,  (B),  (C).]  JURISDICTION,  7 

SO  near  the  house  of  B  as  to  deprive  him  of,  or  lessen  his  use  or  eil^ 
joyment  of  it;  or  A  places  a  spout  on  his  building,  in  consequence 
of  which  the  water  runs  on  the  property,  or  into  the  cellar  of  B, 
and  damages  it:  in  these  cases,  A  makes  no  immediate  or  direct 
attack  upon  the  property  of  B,  but  the  injury  to  B  arises  indirectly 
and  remotely  from  the  acts  of  A,  on  his  own  land.  In  these  and 
the  like  cases,  an  action  of  trespass  would  not  be  the  proper  rem- 
edy, as  it  lies  in  general  only  for  a  direct  injury,  and  as  B,  in  order 
to  recover  damages  must  necessarily  show  that  he  had  some  title 
to  the  lands  or  tenements  injured  by  A,  he  cannot  sue  before  a 
justice. 

A  plaintiff,  in  order  to  maintain  an  action,  must,  on  his  part, 
prove  certain  facts,  to  entitle  him  to  recover,  before  the  defendant 
is  bound  to  make  his  defence.  If  amongst  these  facts,  the  nature 
of  the  case  is  such  that  it  is  necessary  for  the  plaintiff  to  prove  or 
disprove,  title  to,  or  possession  of,  lands  in  himself  or  another  person, 
a  justice  has  no  jurisdiction  over  the  cause,  unless  it  be  an  action 
of  trespass.  Where,  however,  it  is  unnecessary  for  the  plaintiff  in 
the  first  instance,  and  in  order  to  make  out  the  cause  of  action  on 
his  part,  to  show  such  title  or  possession;  but  the  defendant,  to  de- 
feat the  action,  sets  up  such  a  title  or  possession  in  himself,  or 
another,  it  would  seem,  from  the  remarks  of  the  supreme  court  in 
the  case  of  Nichol  v.  Patterson^  that  this  defence,  by  the  defendant, 
would  not  take  away  the  jurisdiction  of  the  magistrate.  Thus:  — 
suit  is  brought  on  a  note,  and  the  defendant  sets  up  as  a  defence, 
that  he  gave  the  note  to  settle  a  supposed  trespass  committed  by 
him  upon  the  land  of  the  plaintiff  by  cutting  his  timber,  and  that 
he  afterward  discovered  that  the  plaintiff  had  really  no  right  to  the 
land,  upon  which  the  timber  was  cut.  Here,  the  plaintiff,  to  recov- 
er, need  only  produce  the  note  in  the  first  instance;  but  the  defen- 
dant sets  up  as  a  defence,  a  question  of  title,  and  this  would  not 
prevent  the  justice  from  deciding  upon  the  merits  of  the  defence, 
and  adjudicating  upon  the  whole  matter.  But,  suppose  A  paid  B 
twenty-five  dollars,  for  a  trespass  done  to  B  by  cutting  timber;  and 
afterwards  A  discovered  that  B  had  no  right  to  the  land  on  which 
A  cut  the  timber,  and  then  brought  his  action  against  B  to  recover 
back  the  money.  Here  it  would  be  necessary  for  A,  the  plaintifT, 
in  order  to  make  out  the  cause  of  action  on  his  part,  to  prove  that 
B  had  no  title  to  the  land  in  question  when  the  trespass  was  com- 
mitted, and  consequently,  a  magistrate  would  have  no  jurisdiction 
over  such  a  suit,(2) 

A  justice  has  no  jurisdiction  whatever,  in  actions  on  contracts 
for  real  estate.' 

If  a  person  agree  to  sell  or  convey  lands,  or  to  sell  or  convey  a 

(b;  4  Ohio  Rep.  200;  but  see  7  Ohio  Rep.  Prt.  2,  230-  (t)  Stat.  525,  5106. 

(2)  In  tne  State  of  New  York,  if  a  justice  finds  on  a  trial,  that  title  comes  in 
question,  the  cause  is  certified  by  liim  to  anotlier  tribunal.  No  such  law  exists  in 
Ohio.  If  a  defendant,  by  settlnjc  up  a  title  in  defence  could,  at  his  discretion, 
take  away  the  jurisdiction  of  a  justice,  the  consequence  would  be,  that  when  the 
plaintiff  sues  for  the  same  cause  in  the  court  of  common  pleas,  the  defendant,  by 
not  setting  up  title  there,  would  again  subject  the  plaintiff  to  costs. 


8  OF    THE    DIFFKRENT    ACTIONS.  [Frt.   I,   C/i.  3, 

dower  estate,  or  agree  to  Itfase  lands,  or  to  assign  a  lease,  title  bond, 
or  other  agreement  for  stich  estate,  and  afterwards  neglect  or  refuse 
to  perform  his  contract,  no  action  therefor  can  be  brought  before  a 
justice.  He  has  no  jurisdiction  over  a  civil  action  lor  an  assault  and 
battery.^  So,  an  action  of  ejectment,  or  re])levin,  or  slander,  (whe- 
ther verbaV-or  written,)  cannot  be  brought  before  a  justice  of  the 
peace.*  No  remedy  can,  in  general,  be  had  by  an  action  before  a 
magistrate  for  the  misconduct  of  officers;  nor  for  a  malicious  prose- 
cution.' There  are,  however,  certain  cases,  in  which  justices  and 
constables  may  be  pi'osecuted  before  a  justice  of  the  peace.  They 
will  be  hereafter  noticed.(3) 

Sec.    II. THE  CONSEQUENCES  OF  PROCEEDING  WITHOUT  JURISDICTION. 

If  a  justice,  in  any  action  over  which  he  has  jurisdiction,  err  in 
his  decision,  he  is  not  liable  in  general  on  that  account,  nor  are  his 
proceedings  void.  But  if  a  justice  takes  it  upon  himself  to  issue 
process  and  render  judgment  in  an  action  of  slander,  or  any  other 
action  where  there  is  a  total  want  of  jurisdiction,  his  proceedings 
are  entirely  void.  '-Void  things  are  as  no  things,"  and  in  such  case, 
the  justice,  and  also  the  constable,  who  executes  the  writ,  (if  he 
knew  by  its  contents,  of  the  want  of  jurisdiction,)  are  wrongdoers, 
and  liable  to  an  action  in  the  court  of  common  pleas."^  Even  the 
consent  of  parties  will  not  give  the  justice  jurisdiction.* 


CHAPTER  III. 


OF  THE  DIFFERENT  ACTIONS. 

Suits  before  justices  of  the  peace  are  in  general  brought  to  re- 
cover damages  either  for  the  breach  of  a  contract,  or  for  an  injury 
to  personal  or  real  property.  The  names  given  to  the  different  ac- 
tions, such  as  Assumpsit,  Debt,  Trover,  Covenant,  &:c.,  and  the 
principles  of  law  by  which  they  are  distinguished,  though  of  great 
importance  to  a  lawyer,  are  of  little  or  no  practical  use  to  a  justice 
of  the  peace.*"  Although  the  cause  of  action  should,  in  general,  be 
stated  on  the  docket,  by  either  copying  the  bill  of  particulars,  note, 
or  contract  filed  by  the  plaintiff,  or  by  briefly  noting  its  contents; 
yet,  it  is  not  necessary,  and  in  general  it  will  be  more  safe  not  to 
designate  the  name  of  the  action.  It  is  only  necessary,  therefore, 
to  define  in  general  terms,  the  different  actions. 

(v)  Stat.  525,  $106.  (a)  3  Caine's  Rep.  129. 

(w)  17  Johns.  Rep.  145.   2Salk.G74.   6  Ohio  Rep.  . ")')  6  Ohio  Rep.  388. 

146.    15  Johns.  Rep.  157. 

(3)  See  as  to  suits  against  justices,  post  Parti,  Chap.  23,  §13.  As  to  suits 
against  constables,  see  pox t  Part  2,  Title  12,  §4. 


§1.]  ACTION    OF    TRESPASS    ON    THE    CASE. 


SECTION    I.  OF  THE  ACTION  OF  TRESPASS  ON  THE  CASE. 

II.  OF  COVENANT. 

III.  OF  DEBT. 

IV.  OF  TROVER. 

V.  OF  TRESPASS  UPON  PERSONAL  PROPERTY. 

VI.  OF  TRESPASS  TO  LANDS.(l) 

VII.  OF  JOINING  DIFFERENT   CAUSF.S   of  action   IN   ONE   SUIT. 


Sec    I. OF  THE  ACTION  OF  TRESPASS  ON  THE  CASE. 

This  action,  when  brought  for  the  breach  of  a  contract,  is  gen- 
erally called  assiimpsit. 

It  is  the  common  remedy  upon  all  contracts  not  under  seal,  whe- 
ther written  or  verbal,  express  or  implied. (2)  Thus:  a  person  who 
has  expended  money  for  a  suffering  pauper,  after  the  overseers  of 
the  poor  have  refused  to  furnish  such  pauper,  may  bring  this  action 
against  the  township,  and  recover  the  money  expended.*  So,  the 
plaintiff  may  recover  back  money  paid  by  him  under  an  agreement 
which  the  defendant  is  unable  to  perform,*^  or  which  he  has  totally 
failed  to  perform,"^  or  which  by  his  default  could  not  be  performed/ 
or  has  been  rescinded,  or  put  an  end  to,  by  both  parties.^ 

When  some  act  is  to  be  done  by  each  party,  under  a  special 
agreement,  and  the  defendant,  by  his  neglect  prevents  the  plaintiff 
carrying  the  contract  into  execution,  the  plaintiff  may,  in  this  form 
of  action,  recover  back  the  money  he  has  paid  under  it.^  But  if  the 
contract  has  been  in  part  performed,  and  the  plnintifF  has  derived 
any  benefit  fi'om  it,  this  action  cannot  in  general  be  maintained.^ 
Where  a  party  sold  a  patent-right,  which  afterwards  turned  out  to 
be  invalid,  held,  that  the  vendee,  who  had  derived  a  benefit  from  the 
use  of  the  patent  for  some  time,  could  not  recover  back  from  the  ven- 
der the  price  which  he  gave  for  it.'* 

Assumpsit  will  lie  on  a  promise  by  advertisement  to  give  a  reward 
to  any  person  who  will  give  information  which  will  lead  to  tlie  dis- 
covery of  an  offender;  for  it  is  a  contract  with  any  person  who  will 
perform  the  conditions  mentioned  in  the  advertisement;  and  it  is 
immaterial  what  motive  may  have  induced  the  plaintiff  to  give  the 
information.'  So  it  has  been  held  that  assumpsit  would  lie  for  the 
value  of  goods  which  the  defendant  fraudulently  induced  the  j)lain- 
tiflf  to  sell  to  an  insolvent  person,''  with  a  view  to  get  possession  of 
them  for  his  own  benefit,  which  purpose  he  effected;  for  the  defend- 
ant could  not  set  up  as  a  defence  the  sale  of  the  goods,  which  was 

(a)  5  Ohio  Rep,  27  (f )  7  T.  R.  181. 

(b)  2  Esp.  Rep.  639.  (g)  5  East  449. 

(c)  1  Cainc's  Rep.  47.    12  Johns.  Rep.  363.  (li)  Bos.  <^  P.  N.  R.  260. 

1  Stra.  407.  (i)  24  Eur.  C.  L.  Rep.  126.    1  Mau.  S(  Sel. 

(d)7T.  R.  181.  108. 

(e)  1  T.  R.  133.    5  Jolins.  Rep.  85.  (k)  3  Taun.  274. 


(1)  As  to  this  action  generally,  see  Part  2,  Title  .30. 

(2)  As  to  what  is  an  express  or  implied  contract,  sec  Part  2,  Title  14,  ^1. 

2 


10  ACTION    OF    TRESPASS    ON    THE    CASE.       [jP/7.    1,   CIt.   3, 

induced  by  his  o^vn  iraud,   and  the  mere  possession  of  them  unac- 
counted for,  was  sufficient  to  raise  an  assumpsit. 

This  action  also  Hes  to  recover  damages  for  torts  or  wrongs,  not 
committed  with  force,  actual,  or  implied;  or,  having  been  commit- 
ted with  force,  where  the  injury  was  not  immediate,  but  consequen- 
tial. 

It  will  be  readily  perceived,  that  this  is  the  proper  remedy  for  a 
great  A'ariely  fif  injuries.     A  few  of  tliese  will  be  stated. 

If  you  are  ignorant  of  the  pecuniary  cirqunistances  of  A;  and  B, 
knowing  that  they  are  bad,  represent  them  to  you  to  be  good,  in 
order  to  deceive  you  and  to  induce  you  to  trust  A;  and  you  are 
thereby  deceived,  and  trust  him,  and  sutler  a  loss:  B  will  be  liable 
to  you  in  this  action  for  the  fraud.'  But  if  B  made  the  representation 
in  good  faith,  w'ith  a  belief  that  it  was  true,  no  action  lies  though  it 
W'ere  false."* 

So,  if  I  hold  a  note  or  bill  of  exchange  against  you,  which  in  my 
hands  is  void  for  w^ant  of  consideration,  but  I  indorse  or  otherwise 
transfer  it  before  it  becomes  due,  so  that  it  is  collected  against  you, 
I  am  accountable  in  this  action  for  the  damages.  But  such  transfer 
must  have  been  before  the  note  or  bill  was  due,  for  otherwise,  your 
remedy  is  by  a  defence  against  the  suit  upon  it. 

If  your  dog,  or  other  domestic  animal,  wound  the  person  of  a  man 
or  his  child,  or  cattle,  you  are  liable  for  the  injury  in  this  action:  but 
in  these  cases  it  must  be  shown  by  the  plaintiti'  that  you  knew,  or 
had  notice,  that  your  domestic  animal  was  wont  to  do  such  mischief." 
Proof  that  the  owner  had  notice  of  a  similar  mischief  having  been 
committed,  will  b©  sufficient,  (as  if  a  dog  has  bitten  sheep  and  after- 
wards bites  a  horse,)  for  the  ownoi-  ought  to  have  killed  him  when 
he  had  notice  of  the  first  mischief."  Any  person  may  wound  or  kill 
a  dog  which  is  found  worrying  or  injuring  a  sheep  or  lamb.P  If  a  dog 
merely  chases  or  bites  any  other  domestic  animals,  except  sheep  or 
lambs,  in  order  to  justify  killing  him,  it  is  necessary  to  show  that  he 
could  not  be  otherwise  separated;  but  if  a  dog  chases  and  kills  one's 
domestic  animals  on  his  own  land,  he  may  kill  the  dog.i  So,  if  the 
owner  of  a  ferocious  and  dangerous  dog  permit  it  to  run  at  large, 
or  to  escape  through  negligent  keeping,  any  one  may  kill  it,  if  the 
owner  knew  or  had  notice  of  its  vicious  disposition.'' 

In  relation  to  animals  naturally  wild,  such  as  bears,  &c,,  the  keep- 
er of  them  is  accountable  for  the  mischief  they  dQ,  whether  he  have 
notice  or  not,  of  their  vicious  disposition.' 

The  plaintiff,  in  these  and  the  like  cases,  must  exercise  due  care 
himself.  Thus:  I  have  a  right  to  keep  a  dog  for  the  protection  of 
my  property,  and  if  you  go  into  my  yard  at  night,  after  my  dog  is 
properly  let  loose,  and  are  bitten,  no  action  therefor  can  be  sus- 
tained.' A  person  has  a  right  to  keep  a  fierce  dog  to  protect  his 
property;  but  not  to  place  it  in,  or  on  the  approaches  to  his  house, 

(I)  8  Johns.  Rep.  19.  (q)  4  Cow.  Rep.  351.    1  Saund.  84,  and  n.  (3) 

(m)  2  East  Rep.  92.  (r)  13  Johns.  Rep.  312. 

(n)  Ld.  Ravni.  109.  2  Id.  1583-  2  Salk.  662.  (s)  Ld.  Raym.  1583. 

13  Johns.  Rep.  339.  (t)  9  East  277.    2  Eng.  C.  L.  Rep.  183,  392- 
(o)  Ld.  Raym.  606-7-8."   2  Stra.  1264.  1  Esp.  203. 

(p)  Stat.  295. 


§2,  3,  4.]      ACTION  OF  COVENANT DEBT TROVER,  11 

SO  as  to  injure  persons  exercising  a  lawful  purpose  in  going  along 
those  paths  to  the  house.'*' 

This  is  also  the  pi'oper  action  to  recover  damages,  when  a  person 
has  been  swindled  out  of  his  money  or  property,  by  forgery,  or  by 
other  fraud,  or  imposition. 

Sec.  II.  —  OF  THE  action  of  covenant. 

This  action  can  only  be  brought  for  the  breach  of  a  contract 
under  seal,  and  is  in  general,  the  only  remedy  for  the  non-perform- 
ance of  such  a  contract,  when  the  damages  are  uncertain,  and  de- 
pend in  amount  upon  the  opinion  of  the  justice,  founded  upon  tes- 
timony. It  will  not  lie  for  the  non-performance  of  the  condition  of 
a  bond."'  It  may  however  h4  brought  on  a  covenant  under  seal  for 
the  payment  of  inoney,  and  is*^ie  usual  remedy  upon  indentures  of 
apprenticeship,  and  other  articles  of  agreement  under  seal,  where 
the  contract  is  for  the  performance  of  some  act  other  than  the  pay- 
ment of  money. 

Sec.  III.  —  OF  the  action  of  debt. 

This  action  is  seldom  brought  except  for  a  penalty  imposed  by 
statute;  upon  bonds  to  which  is  annexed  a  condition;  upon  contracts 
under  seal;  and  upon  recognizances  and  judgments. 

As  a  general  rule,  however,  debt  will  lie  upon  any  contract  whe- 
ther under  seal,  written,  verbal,  express,  or  implied,  where  the  de- 
mand is  for  a  sum  of  money  certain,  or  a  sum  that  is  capable  of  being 
readily  reduced  to  a  certainty;  as  for  goods  sold,  money  lent,  paid, 
had  and  received,  and  upon  a  promissory  note,  bond,  or  other  con- 
tract, for  the  payment  of  money. 

The  usual  remedy  upon  contracts  not  under  seal,  is  an  action  of 
trespass  on  the  case. 

There  are  various  penal  statutes  which  authorize  some  individual 
or  corporation,  to  sue  for  the  penalties  named  in  them,  by  an  action 
of  debt;  and  the  action  of  debt  is  the  proper  remedy  where  a  stat- 
ute creates  a  penalty  and  authorizes  the  same  to  be  sued  for  and 
recovered  befoi'e  a  justice  of  the  peace,  without  naming  Avhat  action 
shall  be  brought  for  that  purpose.* 

Sec.    IV. OF  THE  ACTION  OF  TROVER. 

This  is  a  species  of  the  action  of  trespass  on  the  case,  and  is  gen- 
erally brought  where  one  person  wrongfully  converts  the  property 
of  another  to  his  own  use. 

Wherever  trespass  for  taking  goods  wilMie;  that  is,  where  they 
are  taken  wrongfully,  trover  may  be  brought;  and  if  tiie  whole 
rights  and  merits  of  the  case  have  been  discussed  and  determined 
in  one  action,  the  judgment  in  it  is  a  bar  to  the  other.''  But  the 
converse  of  the  proposition  does  not  hold;  for  trover  may  often  be 

(▼)  19  Eng.  C.  L.  Rep.  394.     1 7  Wend.  496.  (a)  Stra.  828.  1  Ld.  Raym.  682.    2  Black. 

(w)  1  Ohio  Rep.  429.  (b)  Saund.  47,  (k.)  Rep.  1101. 


12  ACTION    OF  TUOVER TRESPASS.  [P/V.    1,   67/.   3, 

brought  where  trespass  cannot;  as  where  goods  are  lent  or  delivered 
to  another  to  keep,  and  he  refuses  to  return  them  on  demand,  tres- 
pass does  not  lie,  but  the  proper  remedy  is  trover. 

A  judgment  for  the  value  of  the  goods,  ;md  payment  thereof,  vests 
the  ownershij)  of  the  goods  in  the  defendant.* 

An  unlawi'ul  taking  of  goods  out  of  the  possession  of  the  owner, 
is  a  conversion  for  which  trover  or  trespass  may  be  maintained,'' 

If  there  be  a  complete  sale  of  goods  so  that  the  ownership  passes 
to  the  buyer,(3)  he  may,  if  the  seller  refuse  to  deliver  the  goods,  sue 
on  the  contract  of  sale,  or  bring  an  action  of  ti'over. 

If  you  arc  in  possession  of  my  pro[)erty  by  my  consent,  or  in  any 
other  rightful  manner,  and  after  the  property  ought  to  be  re-deliv- 
ered, you  refuse  to  return  it,  I  may  sue  you  on  the  contract;  or  may 
consider  the  })roperty  as  converted  by  you  to  your  own  use,  and 
bi'ing  an  action  of  trover. 

In  general,  where  the  defendant  has  become  lawfully  possessed 
of  property,  a  demand  and  refusal  to  re-deliver  it  must  be  proved 
by  the  plaintiff,  before  he  can  recover  in  an  action  of  trover;  unless 
he  is  prepared  to  prove  some  facts,  or  circumstances,  which  show 
that  the  defendant  has  converted  the  property  to  his  own  use.*^  No 
demand  is  in  general  necessary,  if  the  plaintiff  prove  that  the  de- 
fendant has  sold,  consumed,  destroyed,  or  misused  the  property,  or 
done  any  other  act  inconsistent  with  the  owner's  right,'' 

The  damages  assessed  in  this  action  should  be  such,  as  will  make 
the  plaintiff  whole,  for  the  loss  he  has  actually  sustained  by  the  con- 
version. In  cases  where  the  possession  of  the  defendant  is  wrong- 
ful, and  there  is  a  wanton  conversion ;  as  by  mixing  with  other  pro- 
perty to  destroy  its  identity,  or  where  the  property  converted  has 
an  ideal  vahie  to  the  owner,  as  family  pictures^  or  other  relics,  and 
but  little  intrinsic  value,  exemplary  damages  are  generally  given. 
But  where  the  property  is  of  a  determinate  value  in  the  market,  as 
money,  or  common  merchandize,  the  rule  of  damages  is  the  value 
of  the  article,  at  the  time  of  the  conversion,  increased  by  interest, 
up  to  the  judgment.®(4) 

Sec.    V. TRESPASS  TO  PERSONAL   PROPERTY. 

This  action  lies  to  recover  damages  for  an  injury  done  to  personal 
property,  occasioned  by  actual  or  implied  force;  as  for  abusing,  or 
shooting  the  animal  of  another,  or  intermeddling  with  his  property, 
in  exclusion  of  his  right,  etc,^ 

The  person  in  whose  possession  property  is  placed  by  the  owner, 
may  maintain  an  action  and  recover  damages  for  an  injury  done  to 
the  property  while  his  interest  continues.     So,  the  finder  of  proper- 

(a)  Stra.  1078.     10  Eng.  C.  L.  Rep.  49.  (fl)  Eng.  C.  L.  Rep.  422.     Wright's  Rep.  360. 

Wright's  Rep.  360.  1  Stra.  576.     2  Eng.  C.  L.  Rep.  343.     5 

(b)  15  Johns.  Rep.  431.  Id.  422.     1  Wils.  328. 

(c)  2Saun(l.  47,  (c)  (g).  (e)  Per  Wright,  J.   Wright's  Rep.  360— 362. 

(f)  5  Cow.  323,  7  Id.  735.  10  Mass.  Rep.  125. 

(3)  As  to  when  a  sale  is  complete,  see  Part  2,  Title  32,  §1. 

(4)  As  to  damag-es,  when  the  plaintiff  has  merely  a  lien  on  the  property,  see 
Part  2,  Title  25. 


§4 7.]  TRESPASS    ON    LANDS.  13 

ty;  even  bare  possession  without  any  right,  is  sufficient  to  entitle  a 
person  to  maintain  trespass,  against  a  mere  wrongdoer.^ 

Sec.    VI. TRESPASS  TO  LANES. 

This  is  the  proper  action  to  recover  damages',  for  an  illegal  entry 
upon,  or  an  immediate  injury  to  real  property.  The  law  relating 
to  it  will  be  the  subject  of  a  distinct  chapter.(5) 

Sec.  VII. — of  joining  different  causes  of  action  in  one  suit. 

If  the  defendant  is  indebted  to  the  plaintift'  on  a  contract  not  un- 
der seal,  such  as  a  due  bill,  promissory  note,  bill  of  exchange,  or 
the  like ;  and  also  for  goods  sold,  work  and  labor,  money  lent,  or  by 
book  account  or  the  like,  a  recovery  may  be  had  in  one  action  for 
the  whole. 

It  has  already  been  stated  in  what  cases  the  action  of  debt  will 
lie.(6)  With  the  exception  of  the  action  of  debt  for  a  statutory  for- 
feiture, or  penalty,  the  plaintiff  may  join  in  one  suit,  all  the  causes 
of  action  there  mentioned.'' 

So  in  the  action  of  trespass  to  personal  or  real  property,  the 
plaintiff"  may  recover  for  several  distinct  trespasses. 

So  where  suit  is  brought  for  a  breach  of  a  covenant  under  seal, 
the  plaintiff  may  in  general  sue  in  one  action,  upon  as  many  sealed 
instruments  as  he  pleases. 

But  where  the  action  of  covenant  is  the  only  remedy,(7)  the 
plaintiff  can  only  join  causes  of  action  founded  upon  a  contract 
under  seal. 

If  the  plaintiff  has  a  right  of  action  for  a  wrong  or  injury,  not 
sounding  in  contract,  and  also  a  claim  for  a  debt,  he  cannot  in  gen- 
eral join  them  in  one  action. 

A  person  cannot,  in  the  same  action,  join  a  demand  in  Ins  oicn 
right^  and  a  demand,  as  representative  of  another;  nor  demands 
against  a  person  on  his  own  liability,  and  on  his  liability  in  his  repre- 
sentative capacity.'  Thus,  an  executor  or  administrator  cannot  join 
a  claim  due  the  decedent,  with  one  due  to  him  in  his  own  right;  nor 
can  a  person  sue  an  executor  or  administrator,  for  a  claim  due  from 
the  decedent,  and  join  a  claim  due  from  the  executor  or  administra- 
tor himself. 

Where  a  claim  is  due  to  two  or  more  persons  jointly,  either  on  a 
contract,  or  for  a  wrong,  they  cannot,  in  the  same  action,  join  it 
with  a  claim  due  to  one  of  them  individually. 

A  claim  which  the  defendants  are  jointly  bound  to  pay,  cannot  be 
joined  in  the  same  action  with  a  claim  which  only  one  of  the  de- 
fendants is  bound  to  pay.  But  a  sole  surviving  creditor,  (as  a  sur- 
viving partner,)  may  join  his  surviving  claim  with  one  due  to  him 

(g)  13  Johns.  Rep.  141.     7  Cow.  Rep.  752.  (i)  Bac.  Ab.,  Title,  Actions  in  general,  C. 

(h)  1(1.  462.     1  Chit.  PI.  229,  ed.  1833. 


(5)  See  Part  2,  Title  36.  (7)  See^.  11. 

(6)  See  p.  11. 


14  OF  JOINING  DIFFERENT  CAUSES  OF  ACTION.    [P/'t.  1,   Cfl,  3.] 

individnuUy;  and  \\hore  I  owe  a  claim  as  a  surviving  debtor,  I  may 
be  sued  for  tliis,  and  tdso  on  a  claim  due  from  me  alone,  in  the  same 
suit.  A  claim  duo  to  husl)and  and  Avifc,  cannot  be  joined  with  a 
debt  due  to  tlic  husband  alone;  but  this  rule  does  not  extend  to  a 
debt  which  falls  due  to  the  wife  after  the  intermarriage;  for  then  the 
husband  may  sue  in  his  own  name,  and  consccjuently  can  join  in 
the  suit,  a  debt  due  him  individually.  The  above  rules  in  relation 
to  the  joinder  of  causes  of  action  in  different  rights,  are  general  in 
their  a])plication;  extending  to  all  actions  arising  either  from  wrongs 
or  contracts.'' 

The  better  opinion  seems  to  be,  that  if  no  objection  be  made  be- 
fore the  justice  to  the  misjoinder  of  actions,  the  court  of  common 
pleas,  on  certiorari,  will  presume  that  the  defendant  consented  to 
it,  and  the  exception  will  therefore  avail  nothing,  on  certiorari.' 
But  it  could  be  taken  advantage  of  on  appeal,  and  the  safest  course 
in  such  cases  is,  to  strike  out  of  the  bill  of  particulars  the  claim  which 
creates  the  misjoinder,'"  and  proceed  with  the  trial  of  the  cause  upon 
matters  retained  in  the  bill. 

(k)  Chit.  PI.  232-3-4,  cd.  1833.  (m)  ]6  Id.  146. 

(I)  3  Johns.  Rep.  436-     12  Id.  347. 


CHAPTER  IV. 


OF  THE  PARTIES  TO  ACTIONS,  AND  HEREIN,(1) 

SECTION    I,       WHO  MUST  BE  PLAINTIFF. 

(A)  In  an  action  on  a  contract. 

(B)  In  an  action  for  a  wrong. 

II.  OF    THE    CONSEQUENCES    OF    AN    OMISSION,     OR     MISTAKE,     IN 

MAKING  PARTIES  PLAINTIFFS. 

III.  WHO  MUST  BE  DEFENDANT. 

{A)  In  an  action  on  a  contract. 
(B)  In  an  action  for  a  wrong. 

IV.  OF     THE    CONSEQUENCES    OF     AN    OMISSION,    OR    MISTAKE,     IN 

MAKING  PARTIES  DEFENDANTS. 

V.  OF  THE    CONSEQUENCES   OF  THE  DECEASE   OF  PARTIES,  WHILE 

A  SUIT  IS  PENDING. 


Sec.  I. — WHO  must  be  plaintiff. 

{A)  In  an  action  on  a  contract. 

With  the  exception  of  a  negotiable  bond,  bill  of  exchange,  and 
promissory  note,  the  person  with  whom  a  contract  is  made,  or  his 
executors  or  administrators,  can,  in  general,  alone  sue  upon  it,  even 
though  it  be  payable  to  order,  bearer,  or  assigns,  and  transferred. 

If  you  enter  into  a  contract  under  seal  with  A,  and  thereby  cove- 
nant with  him,  to  pay  B  fifty  dollars,  or  to  pay  A,  for  the  use  and 
benefit  of  B,  fifty  dollars;  in  such  case  A  alone  must  sue,  and  B 
cannot  bring,  or  join  in,  an  action  for  the  money.  But,  if  you,  by 
writing  without  seal,  or  verbally,  promise  A  to  pay  B,  or  pi-omise  A 
to  pay  him  for  the  use  and  benefit  of  B,  fifty  dollars;  either  A  or  B 
may  sue  for  the  money.* 

When  a  contract  is  made  with  two  or  more  persons,  under  seal, 
verbally,  or  in  writing,  the  question  whether  they  must  sue  jointly, 
or  may  sue  separately,  depends,  generally,  upon  the  legal  interest  of 
the  parties  in  the  subject  matter  of  the  contract;  and  upon  the 
terms,  or  words  of  the  contract,  being  joint,  or  joint  and  several. (2) 

(a)  1  Chit.  PI.  5-6 — 6tli  Jim.  Ed.  1  Jolins.  Rep.  l.'^S.  10  Mass.  Eep.  287.  Tlie  law  is  laid 
down  differently  in  the  old  editions  of  Cliitty's  Pleading. 

(1)  As  to  parties  to  actions  where  the  suit  is  by  or  ag-ainst  Husband  and  Wife, 
see  Part  2,  Title  21; — or  for  trespasses  to  land,  see  Part  2,  Title  36;  —  or  by  or 
ag-ainst  Partners,  see  Part  2,  Title  29,  §6; — or  by  or  against  Infants,  see  Part  2, 
Title  22,  ^5. 

(2)  The  distinction  between  contracts  which  are  in  their  terms,  either  several  or 
joint  only,  or  both  joint  and  several,  will  be  well  understood,  by  a  few  examples. 


16  OF    THE    PARTIES    TO    ACTIONS PLAINTIFF.    [P/'Z.  1,  CA.  4, 

The  rule  may  be  illustrated  as  follows:  if  A  and  B  and  C  enter 
into  a  contract,  and  A  thereby  contract  with  15  and  C,  jointly  and 
severally,  to  pay  them  tifty  dollars;  here  B  and  C  have  a  joint  inter- 
est in  the  whole  sum  of  /iffy  dollars,  and  they  should  sue  jointly  to 
recover  it,  though  the  contract,  in  its  terms,  is  several,  as  w^ell  as 
joint;  but  if  tha  contract  was  by  A,  with  B  and  C  jointly,  that  he 
would  pay  them  twenty-five  dollars  cach^  they  would  each  have  a 
sej)arate  interest  in  twenty-five  dollars,  and  must  sue  separately  to 
enforce  payment  of  it,  though  the  contract  for  the  payment  is  in  its 
terms  joint. ^ 

Where  suit  is  to  be  brought  upon  n  Joint  contract,  w^hether  under 
seal,  written,  or  verbal, (3)  and  two  or  more  persons  ought  to  be 
made  plaintiffs,  if  living,  and  some  of  them  are  dead,  the  suit  must 
be  brought  in  the  name  of  the  survivors;  and  the  executors  or  ad- 
ministrators of  the  deceased  parties  have  no  right  in  such  case  to 
sue  alone,  or  to  join  with  the  surviving  parties.  If  all  be  dead,  then 
the  executor  or  administrator  of  the  last  survivor,  should  sue. 

If  some  of  those  who  might  have  sued,  be  dead,  and  the  contract 
IS  Joint  and  several^  sepnratc  suits  may  bo  brought  by  the  survivors 
as  well  as  by  the  administrators  or  executors  of  the  deceased  par- 
ties. But,  in  no  case  can  the  survivors  and  the  executors  or  admin- 
istrators of  a  deceased  party  join  in  a  suit.  Where  two,  three,  or 
more  persons  have  a  right  to  sue  jointly  and  separately,  they,  or  the 
survivors,  must  all  join  or  all  sue  separately. 

When  the  plaintiff  to  the  suit  is  the  survivor  of  another  who  ought 
to  have  joined  in  the  action,  if  living;  it  should  appear  on  the  docket 
that  the  party  to  the  contract  who  is  not  joined  as  plaintiff,  is  dead. 

Suits  in  behalf  of  the  penitentiary  should  be  brought  in  the  name 
of  the  Ohio  penitentiary,  and  the  plaintiff  should  be  named  on  the 
docket  and   in    the  process,(4)   thus:    "The    Ohio   penitentiary.'"^ 

(b)  1  Chit.  PI.  3.  (c)  Stat.  628,  $19. 

When  the  \vords  of  the  contract  are,  "JVe  promise,"  &.C.,  or  "We jointly  prom- 
ise," &c.,  or  "the  said  A.  B.  doth  hereby  covenant  to  and  with  C.  1).,  and  to  and 
luith  E.  F.,  to,"  &c. ;  these  or  words  of  tlie  like  import,  make  the  contract,  in  its 
terms,  joint.  A  contract  is  said  to  be  joint  a??*-/ several  in  its  terms,  wlicre  two  or 
more  persons,  each  for  themselves  promise,  respectively,  to  do  a  certain  thing", 
and  they  also  unitedly  promise,  jointly  to  do  the  same  tiling-.  Thus:  "JVe  and 
each  of  us,  promise,"  &c  ,  or  "A.  B.  and  C.  D.  both  covenant,  and  each  for  himself, 
covenants,"  Sec,  or  "JVe  or  cither  of  us  promise,"  &.C.,  or  "JJ'e  jointly  and  sever- 
ally, promise,"  &c. :  these,  and  the  like  words,  create  a  joint  and  several  promise. 
Where  two  or  more  sign  a  contract,  or  note,  which  in  the  body  of  it  purports  to 
be  made  by  one  person,  (as,  "I  promise,"  &c.)  such  note  or  ag-recment  is  joint 
and  several.  &  Mass.  Rep.  b\^;7  Id.  bS.  Chit,  on  Bills,  '^'iZ.  Where,  however, 
several  persons  contract  tog-ether  with  the  same  party,  for  one  and  the  same  act, 
they  are  reg-arded  as  jointly  and  not  individually  or  separately  liable,  in  the  absence 
of  any  express  words  to  show  that  a  distinct,  as  well  as  an  entire  liability  was  in- 
tended to  fasten  upon  each  of  the  promisors.      1  Salk.  393. 

(3)  The  word  contract,  as  here  used,  and  g-encrall}^,  in  this  work,  means  any 
promise,  express  or  implied,  under  seal,  in  writing-,  or  verbal.  See  further,  in 
relation  to  parties  to  actions  where  the  suit  is  upon  a  promissory  note,  bill  of  ex- 
changee, or  neg-otiable  bond.  Part  2,  Title  31,  §9. 

(4)  Process  is  of  two  kinds;  mesne  and  final.  Mesne  process  includes  such 
writs  as  are  issued  before  judgment,  as  a  summons,  capias,  subpana,  &c.  Mansf. 
Gram,  Final  process  is  such  as  is  issued  to  carry  a  final  judgment  into  effect.  Id.  lb. 


§1,(A),  (B).]     OF    THE    PARTIES    TO    ACTIONS PLAINTIFF.  17 

Suits  in  behalf  of  a  corporation  should  be  prosecuted  in  the  name 
given  by  law  to  the  corporation;  thus:  '•'•The  Ohio  Life  Insurance 
and  Trust  Company."  In  suits  brought  by  a  school  district,  the 
plaintiff  should  be  named  on  the  docket  and  in  the  process,  thus: 

"The  State  of  Ohio  for  the  use  of  District  No. ,  in  the  township 

of ,  in county:"  filling  up  the  blanks  with  the  number 

of  the  district,  the  township  and  county."^  Townships  in  general, 
sue  in  the  name  of  the  trustees,  thus:  '■'•The  trustees  of town- 
ship," without  naming  the  individual  officers.® 

Agents  and  servants,  with  whom  a  contract  is  made,  cannot  in 
general  sue  in  their  own  name,  but  suit  must  be  brought  in  the 
name  of  the  person  for  whom  they  act,^ 

In  general,  when  an  agent  sells  goods  for  his  principal,  the  con- 
tract is,  in  point  of  law,  between  the  principal  and  the  buyer,  and 
the  former  may  maintain  the  action;  but  when  the  agent  sells  goods 
as  his  own,  concealing  the  name  of  his  principal,  and  the  principal 
brings  an  action  against  the  buyer,  the  latter  has  aright  to  consider 
the  agent  as  the  principal,  for  all  purposes,  and  may  set  off  any 
claim  which  he  had  against  the  agent,  or  rely  on  any  payment 
which  he  has  made  to  him  in  due  course,  without  notice  that  he 
was  not  the  principal.^  "If  a  person,"  said  Lord  Tenterden,  "sells 
goods  supposing  at  the  time  of  the  contract  that  he  is  dealing  with 
a  principal,  but  afterwards  discovers  that  the  person  with  whom  he 
has  been  dealing  is  not  the  principal,  but  agent  for  a  third  person, 
though  he  may  in  the  mean  time  have  charged  the  agent  with  it,  he 
may  afterwards  recover  the  amount  from  the  real  principal;  on  the 
other  hand,  if  at  the  time  of  the  sale  the  seller  knows,  not  only  that 
the  person  who  is  nominally  dealing  with  him  is  not  principal  but 
agent,  and  also  knows  who  the  principal  really  is,  and  notwith- 
standing all  that  knowledge,  chooses  to  make  the  agent  his  debtor, 
then  according  to  the  cases  of  Addison  v.  Gaudesequi,'  and  Patter- 
son V.  Gaudesequi,''  the  seller  cannot  afterwards  on  the  failure  of 
the  agent,  turn  round  and  charge  the  principal,  having  once  made 
his  election,  when  he  had  the  power  of  choosing  between  the  one 
and  the  other."^ 

Where  the  contract  is  made  in  express  terms,  with  an  agent,  as 
where  a  note  is  executed  directly  to  the  agent  instead  of  to  his  prin- 
cipal, there  the  agent  may  sustain  an  action  in  his  own  name."  So, 
where  the  agent  sells  the  goods  of  another  in  his  own  name,  and  has 
a  beneficial  interest  in  them,  as  a  commission  or  per  cent,  he  may 
sue  in  his  own  name."  If  a  contract,  note,  bond,  or  bill  of  exchange, 
be  drawn  payable  to  one  in  a  wrong  name,  he  may  sue  in  his  right 
name  and  show  the  mistake." 

{B)  Who  must  he  plaintiff  in  an  action  for  a  wrong. 

If  the  owner  was  not  in  possession  of  the  goods  at  the  time  they 

(d)  Stat.  $45.  (I)  17  Eng.  C.  L.  Rep.  337. 

re)  3  Ohio  Rep.  227.    5  Ohio  Rep.  185.  (in)  8  Mass.  Rep.  103. 

(g)  10  Johns.  Rep.  387.  (n)   1  Chit.  P).  8,  ed.  ]833. 

(h)  7  T.  R.  359.360  ;  Cowp.  255  ;  2Campb.24.  (o)  3  Eng.  C.  L.  Rep.  229.     5  HnlH.  Rrp.  323. 

(i)  4  Taunt.  574.  10  Co.  122.     10  Mass.  Rep.  360.     13 

(k)  15  East  62.  Johns.  Rep.  38. 

3 


18  OF  THE  PARTIES  TO  ACTIONS PLAINTIFF.    [Prt.  1,  Ck.  4, 

were  wrongfully  taken,  or  injured,  or  converted,  and  then  had  no 
right  to  the  immediate  possession  of  the  goods,  he  cannot,  in  gene- 
ral, sue  the  wrongdoer,?  Thus:  goods  were  leased  as  furniture  with 
the  house  and  then  wrongfully  taken;  it  was  decided  that  the  land- 
lord could  not  maintain  trover  against  the  wrongdoer,  for  he  had 
not  a  right  to  the  immediate  possession. i  In  such  case  the  tenant 
who  is  liable  over  to  the  landlord,  should  sue.  But  where  lands 
were  leased,  and  a  tree  was  cut  down  during  tlie  term,  by  a  stranger, 
it  was  held  that  the  landlord  could  maintain  trover  for  it;  for,  when 
severed  from  the  land,  the  special  property  of  the  tenant  was  deter- 
mined, and  the  landlord  had  an  immediate  right  to  the  possession  of 
the  tree."" 

If  the  plaintiiT  was  in  possession  of  the  goods  at  the  time  they  were 
wrongfully  taken  and  converted,  this,  in  general,  will  be  sufficient 
where  the  action  is  brought  against  a  mere  wrongdoer,  although 
such  plaintiff' 1)6  not  the  actual  owner  of  the  goods,  but  found  them, 
or  had  them  as  bailee,  pawnee,  or  to  use,  or  carry.''(5)  But  the  pos- 
session of  the  goods  of  the  master  by  a  mere  servant,  is  deemed  the 
possession  of  the  master,  and  he  alone  can  maintain  an  action  for 
their  conversion,  or  for  an  injury  done  to  them.  If  a  domestic  ani- 
mal run  at  large,  it  is  considered  as  in  the  possession  of  its  owner.* 
Where  two  persons  are  joint  owners  of  property,  neither  trover  nor 
trespass  can  in  general  be  maintained  by  one  against  the  other;  be- 
cause the  possession  of  one,  is  the  possession  of  his  companion.* 
Thus:  wiiere  the  plain  till' and  one  of  the  defendants,  were  members 
of  a  friendly  society,  the  funds  of  which  were  kept  in  a  box  depos- 
ited with  them,  and  the  defendant  took  away  the  box  and  delivered 
it  to  the  other  defendant,  who  was  not  a  member  of  the  society;  it 
was  holden  that  the  plaintiff  could  not  maintain  trover  for  the  box.'*' 
But  if  one  of  the  joint  owners  of  property  destroy  it,*  or  sell  it,^  the 
other  may  maintain  an  action  of  trover  against  him.  For  injuries 
to  the  lands  or  tenements  of  a  deceased  person,  during  his  life  time, 
the  suit  should  be  brought  by  his  executors  or  administrators;*^  but 
if  done  after  his  death,  the  suit  should  be  brought  by  his  heirs,  as 
they  alone  are  entitled  to  a  control  over  the  estate.  Emblements 
growing  on  the  land  of  the  deceased,  are  assets  in  the  hands  of  the 
administrator.  Crops  put  in  afterwards  belong  to  the  heirs.*^  Which- 
soever is  entitled  to  the  emblements,  or  crops,  must  sue  for  an  inju- 
ry done  to  them. 

Where  the  personal  property  of  a  deceased  person  has  been  in- 
jured, or  converted,  either  before  or  after  his  decease,  his  executors 
or  administrators  may  sue  therefor,  as  the  personal  property  goes  to 

(p)  7  Johns.  Rep.  337.  (v)  Co.  Litt.  208,  (a.)     2  Saund.  47,  h,  (n.) 

(q)  7  T.  R.  9.  21  En<;.  C.  L.  Rep.  390.  (w)  1  T.  R.  658.     1  Taunt.  241.     7  Mass.  Rep. 

(r)  Cro.  Car.  242.     7  Eng.  C.  L.  Rep.  272.  135. 

Wrislifs  Rep.  500.  (a)  2  Johns.  Rep.  468. 

(g)  1  Stra.  505.    12  Jolins.  Rep.  403.  13  Id.  (b)  3  Johns.  Rep.  175.     7  Eng.  C.  L.  Rep.  148. 

352.     1  Caine's  Rep.  14.   2  Taunt.  202.  (c)  Stat.  669,  $90. 

(t)  Wright's  Rep.  552.  (d)  Stat.  344,  $31. 


(5)  See  further  upon  this  subject,  Part  2,  Title  9. 


§"2,  (B),  3,  (A).]    OF  THE  PARTIES  TO  ACTIONS DEFENDANT,  19 

them  and  not  to  the  heh's  •/ but  where  one  of  several  persons  jointly 
entitled  to  damages  for  a  wrong  or  injury,  dies,  the  action  should  be 
brought  in  the  name  of  the  survivor,  and  the  executor  or  adminis- 
trator of  the  deceased  cannot  be  joined,  nor  can  he  sue  separately.''  ^ 
If,  however,  the  property  of  diflerent  individuals  be  taken  or  injui'- 
ed,  or  other  wrong  be  done  to  them  at  one  and  the  same  time,  by  a 
single  act,  each  one  must  separately  sue  for  the  injury  done  to  him- 
self; they  cannot  join  in  one  action.  But  if  property  so  taken  or 
injured  was  owned  by  them  jointly,  then  they  should  jointly  sue, 
and  cannot  bring  separate  actions. 

Sec.    II. OF    THE    CONSEQUENCES    OF    AN    OMISSION,    OR    MISTAKE,    IN 

MAKING  PARTIES  PLAINTIFF. 

If  there  be  any  omission  or  mistake,  in  making  parties  plaintiff, 
and  the  defendant  objects,  on  that  ground,  to  a  recovery,  the  justice 
should  render  a  judgment  of  nonsuit  against  the  plaintiff,  who  may 
bring  a  new  action.(7)  In  all  such  cases  the  justice  should  note  on 
his  docket,  the  reason  why  the  judgment  of  nonsuit  was  rendered. 
A  mere  mistake  in  spelling  the  name  of  the  plaintiff  is  of  no  con- 
sequence, if  his  real  name  and  the  one  in  which  he  sues  sound  alike. 

Sec.    in. AVHO  MUST  BE  DEFENDANT. 

(A)  In  an  action  on  a  contract. 

An  action  upon  a  contract,  Avhether  under  seal,  verbal,  or  written, 
must  in  general  be  brought  against  the  person  who  made  it,  either 
in  person,  or  by  agent. 

If  two,  or  more,  jointly  and  severally  promise  to  do  an  act,  they 
may  be  sued  separately  or  jointly,  at  the  option  of  the  plaintiff.(8) 
If  the  plaintiff  choose  to  proceed  against  them  jointly,  he  must  sue 
all;  and  cannot,  where  there  are  three  or  more,  proceed  against 
two  only,  unless  indeed,  the  third  be  dead;  in  which  case  his  action 
must  be  either  ngainst  the  survivors  alone,  or  against  each  of  the 
parties  and  their  representatives,  separately.  If  he  choose  to  bring 
separate  suits,  he  may  sue  as  many,  or  as  few,  as  he  pleases,  but  pay- 
ment of  the  judgment  against  one  will  be  a  bar  to  the  other  ac- 
tions.(9) 

When  the  contract  or  promise  is  joint  only,  in  its  terms,  instead 
of  joint  and  several,  the  plaintiff  must  sue  all  the  joint  contractors, 
or  all  the  survivors,  where  one  or  more  is  dead.  The  executors  or 
administrators  of  the  deceased  party  cannot,  in  such  case,  be  sued 
alone,  nor  can  they  be  joined  in  the  suit  against  the  survivors;  but  if 

(a)  Wright's  Rep.  654.  (b)  1  Cliitty's  PI.  77,  6th  Am.  Ed. 

(6)  The  survivor  must  pay  to  the  executor  or  admini.strator  of  the  decedent,  a. 
just  proportion  of  the  avails  of  the  judgment,  when  received. 

(7)  For  tlie  reasons  of  this  direction,  see  note  to  the  4th  section  of  this  chapter. 

(8)  As  to  what  contracts  are  joint  oidy,  or  joint  and  several,  see  p.  15,  note  2, 

(9)  Sec  Part  2,  Title  31,  §9,  in  relation  to  suits  against  the  parties  to  notes, 
bonds,  and  bills  of  exchange,  which  have  been  indorsed. 


20  OF  THE  PARTIES  TO  ACTIONS DEFENDANT.   [^P/^t.  1,  CIl.A^ 

all  the  joint  contractors  be  dead,  then  the  suit  should  be  brought 
against  the  executors  or  administrators  of"  the  party  who  last 
died.(lO) 

If  a  contract  be  not  joint  and  several,  but  several  only,  then  sep- 
arate suits  should  be  brought  against  the  contractors  or  their  repre- 
sentatives.'^ 

Statutes  creating  corporations  usually  give  them  corporate  names; 
as,  ^"The  President  and  Directors  of  the  Dayton  Bank,"  and  author- 
ize them  to  sue,  and  be  sued,  by  the  name  so  given.  Where  this 
is  the  case,  the  corporate  name  sliould  be  strictly  j)ursued,  in  an  ac- 
tion by,  or  against  the  corporation.  But  there  are  some  corpora- 
tions created,  and  the  statute  gives  them  no  corporate  name,  by 
which  to  sue.  In  such  case  the  corporations  may  sue  and  be  sued 
by  the  general  name  mentioned  in  the  statute,  authorizing  them  to 
sue  or  be  sued.     Thus:  for  a  township  liability,  the  township  should 

be  sued,  and  process  should  be  issued  against  "The  trustees  of 

township,"  without  naming  the  individual  officers.*^  Suits  against 
a  school  district  should  be  brought  against  '•'•The  Directors  of  school 
district  No. ,  in  the  township  of ,  in county."® 

When  a  person  has  contracted  in  the  capacity  of  agent,  and  that 
circumstance  was  known  at  the  time  of  the  agreement,  to  the  per- 
son with  whom  he  contracted,  such  agent  is  not,  in  general,  liable 
to  an  action  for  the  non-performance  of  the  contract,  but  suit  should 
be  brought  against  his  principal.''  A  party,  however,  who  would 
relieve  himself  from  responsibility  on  the  ground  that  he  was  acting 
as  agent,  ought  to  show  that  he  communicated  that  fact  to  the  other 
party,  so  as  to  give  him  a  remedy  against  the  principal,**  unless  the 
transaction  itself  showed  that  the  fact  of  agency  was  known.  The 
agent  becomes  personally  liable,  only  where  the  principal  is  not 
made  known,  or  where  the  agent  contracts  in  his  own  name,  or 
where  he  exceeds  his  authority,'  or  where  money  is  mispaid  to  him 
and  he  has  notice  thereof  before  he  pays  it  over  to,  or  settles  for  it 
with,  his  principal.''  If  an  agent  buy  goods  in  his  own  name,  but 
for  the  benefit  of  his  principal,  and  without  disclosing  the  name  of 
the  latter,  the  principal  is  also  bound,  as  well  as  his  agent,  provided 
the  goods  came  to  his  use.' 

An  agent  who  executes  a  power  by  giving  a  contract  or  deed  un- 
der senl\  must  do  it  in  the  name  of  the  principal ;  fm-  if  he  execute  and 
seal  it  in  his  own  name,  though  he  describe  himself  to  be  agent  ov 
attorney  of  his  principal,  the  instrument  is  void  as  against  the  prin- 
cipal, and  he  cannot  be  sued  upon  it.™  But  where  an  agent  makes 
a  written  contract  not  under  seal^  and  recites  his  agency  therein,  and 
describes  himself  in  the  body  of  the  instrument  as  executing  a  power, 

(c)  1  Cliilty's  PI.  49,  ed.  1833.  (i)  2  Kent's  Com.  (530.     2  Dev.  90 

((I)  3  Ohio  Rep.  227.     old.  185.  8  Id.  179.         (k)  1  Wend.  Rep.  173. 

>e)  Stat.  (1)  17  Eng.  0.  L.  Rep.|335.  2Greenl.  Rep:  373: 

(g)  1  Cliilty's  PI.  25.  (ni)  2  Kent's  Com.  631 ;  8  Ohio  Rep.  170. 

(h)  13  Johns.  Rep.  58. 

(10)  Altlioug'h  the  leg-al  representatives  of  a  deceased  joint  contractor,  cannot, 
(unless  the  decedent  were  the  last  survivor,)  be  sued  upon  his  contract,  yet  what- 
ever amount  is  paid  by  the  surviving  joint  contractors  on  his  account,  may  be  re- 
covered by  them,  from  his  estate. 


§3,  (A).]  OF   THK    PARTIES    TO    ACTIONS DEFENDANT.  91 

the  principal  will  be  bound,  although  the  agent  merely  sign  his  own 
name  to  the  contract,"(ll) 

If  the  agent  or  attorney,  in  the  name  of  his  principal,  and  not  in 
his  own  name,  execute  an  instrument,  when  in  fact  he  had  no  au- 
thority to  do  so,  neither  the  principal  nor  the  attorney  can  be  sued 
upon  it.°  But,  if  on  agent,  with  or  without  authority,  promise  or 
covenant  in  his  own  name^  he  will  be  responsible,  though  he  should 
give  himself  in  the  instrument  the  description  or  character  of  agent.? 
And  although  an  agent  who  acts  without  authority  is  not  personally 
bound  by  the  instrument  which  he  executes,  if  it  contains  no  prom- 
ise or  covenant  on  his  own  part;  yet  he  may  be  sued  for  assuming 
to  act  when  he  had  no  power,  and  the  person  injured  must  recover 
what  damages  he  hath  sustained  on  account  thereof. "^ 

There  is  a  difference  between  public  and  private  agents,  in  regard 
to  personal  responsibility.  If  an  agent,  on  behalf  of  the  government, 
make  a  contract,  and  describe  himself  as  agent,  he  is  not  personally 
liable,  even  though  the  terms  of  the  contract  be  such  as  might,  in  a 
case  of  a  private  nature,  involve  him  in  such  liability.""  A  party  who 
deals  with  a  public  agent  is  supposed  to  rely  upon  the  good  faith  of 
the  government;  but  such  agent  may  expressly  agree  to  be  person- 
ally responsible,  and  in  that  case  will  be  liable.* 

An  agent  ordinarily,  and  without  express  authority,  has  not  power 
to  employ  a  sub-agent  to  do  the  business,  unless  with  the  knowledge 
and  consent  of  the  principal.'  And  if  authority  in  a  matter  of  mere 
private  concern,  be  confided  to  more  than  one  agent,  it  is  requisite 
that  all  join  in  the  execution  of  the  power,  or  the  principal  will  not 
in  general  be  bound.  But  where  matter  of  a  public  trust,  or  a 
power  for  public  purposes  is  confided  to  three  or  more,  the  act  of 
the  majority  will  bind,  if  all  the  agents  meet  together. '^ 

The  power  of  an  agent  ceases  immediately  upon  the  death  of  his 
principal. 

The  relation  of  master  and  servant  subsists,  as  well  where  a  la- 
borer or  journeyman  is  hired  to  do  work,  as  where  an  infant  is  an 
apprentice  under  indentures.  The  master  is  liable  upon  contracts, 
and  for  injuries  done  by  his  servant,  if  the  act  be  done,  or  the  con- 
tract be  made  by  the  authority  of  the  master.  If  the  servant  do 
an  injury  fraudulently,  while  in  the  immediate  employment  of  his 
master,  the  master,  as  well  as  the  servant  has  been  held  liable  in 
damages;  and  the  master  is  also  said  to  be  liable,  if  the  injury  pro- 

(n)  8  Ohio  Rep.  170.     8  Pick.  Rep.  56.  (r)  1  Mass.  Rep.  208.    1  T.  R.  172.    12  Johns. 

(o)  2  Keiii's  Com.  631.  Rep.  444. 

(p)  7  Cow.  Hop.  453.  (8)  12  Johiig.  Rep.  385.     15  1(1.1. 

(q)  11  Mass.  Rep.  97.     2  Greenl.  Rep.  14.  (t)  2  Kent's  Com.  663. 

(v)  5  Oliio  Rep.  485. 


(11)  If  the  ag-ent  or  attorney  enter  into  a  sealed  contract,  in  these  or  the  like 
terms:  «*I,  A.  H.,  agent  for  C.  D.,  do  hereby  promise,"  &;c. :  this  is  the  promise 
of  A.  n.,  tlie  ag-ent,  wiio  may  be  sued,  and  not  of  C.  D.  the  principal.  If  the 
contract  is  tlius:  "C.  D.,  by  liis  agent,  A.  «.,  doth  hereby  promise,"  etc.,  or, 
"C.  D.  doth  hereby  promise,"  etc.  the  promise  is  then  by  C.  D.,  and  he  alone 
can  be  sued  upon  It. 


23  OF  THE  PARTIES  TO  ACTIONS DEFENDANT.      [Prt.  1,  CA.  4 

ceed  from  the  negligence,  or  want  of  skill  in  the  servant;  for  it  is 
the  duty  of  the  master  to  employ  servants  who  are  honest,  skillful, 
and  careful."'  The  master,  however,  is  only  answerable  for  the 
h-aud  of  his  servant,  while  he  is  acting  in  iiis  business,  and  not  for 
iraudulent  or  wrongful  acts,  or  misconduct,  in  those  things  which 
do  not  concern  his  duty  to  his  master,  and  which  when  he  commits 
he  steps  out  of  the  course  of  the  service.'' 

If  the  servant  sell  for  the  master,  a  piece  of  clotli,  and  warrant 
it  to  be  good;  an  action  upon  the  warranty  lies  against  the  master. 
If  a  servant  make  a  contract  for  his  master,  under  a  general  au- 
thority from  him  to  do  so,  the  action  must  be  against  tlie  master, 
and  not  against  the  servant.  If  a  man  send  his  servant  with  mo- 
ney to  buy  goods,  and  the  servant  buy  upon  credit,  the  master  is  not 
chargeable;  but  if  in  such  a  case,  the  master  had  previously  been 
in  the  habit  of  purchasing  of  the  seller  upon  credit,  he  would  be 
liable,  even  though  the  goods  never  came  to  his  use,'=  unless,  indeed, 
he  had  given  notice  to  the  seller,  not  to  trust  the  servant.  For 
contracts  made  by  the  servant  in  his  own  name,  however,  the  mas- 
ter is  clearly  not  liable;  nor  is  he  bound  to  provide,  nor  can  he  be 
made  liable  for  medical  attendance  and  medicine  for  his  servant, 
unless  he  employed  the  physician,  or  the  servant  was  an  apprentice 
under  indentures."^ 

If  a  servant  employ  another  servant  to  do  his  business,  aud  in 
doing  it  the  servant  so  employed  be  guilty  of  an  injury,  the  master 
of  the  first  servant  is  liable;  Thus:  A,  contracted  with  B,  to  repair 
a  house,  and  B  contracted  with  C  to  do  the  work,  and  C  contracted 
with  D  to  furnish  the  materials,  and  E,  the  servant  of  D,  brought 
a  quantity  of  lime  to  the  house,  and  placed  it  in  the  road,  by  which 
the  plaintift'\s  carriage  was  overturned;  it  was  holden  that  A  was 
answerable  for  the  damage,  on  the  ground,  that  all  the  sub-con- 
tracting parties  were  in  the  employment  of  A.^  But  this  princi- 
ple is  only  applicable  where  the  nature  of  the  business  is  such,  as 
to  require  the  agency  of  subordinate  persons,  and  then  there  is  an 
implied  authority  from  the  master  to  the  servant  to  employ  such 
persons.^ 

(B)   Who  maTj  he  defendant  in  an  action  for  a  rrrong. 

We  have  just  seen  that  a  master  or  principal  is  liable  for  any 
injury  occasioned  by  the  negligence,  or  unskillfulness  of  his  servant 
or  agent,  while  in  the  course  of  his  employ. 

In  many  cases,  the  owner  of  property,  and  the  person  in  posses- 
sion of  it,  have  both  a  right  to  bring  an  action  against  the  same 
person  for  the  same  injury.  But  trespassers  are  not  bound  to  make 
a  double  satisfaction  for  the  same  injury;  and  consequently,  the 
recovery  by  one,  in  such  case,  is  a  bar  to  the  action  of  the  other.^ 
And  where  the  owner,  or  the  person  in  possession  of  property, 

(a)  1  Stra.  653.     2  Kent's  Com.  259.  (c)  1  Bos.  and  Pul.  404. 

(b)  8  T.  R.  533.     17  Mass.  Rep.  508—510.  (g)  1  Blac.  Com.  428. 

(c)  Arch.  PI.  65.  (li)  Bac.  Ab.,  Title,  Trespass,  C. 

(d)  19  Eng.  C.  L.  Rep.  284. 


§3,  (B),  4.]    OF  THE  PARTIES  TO  ACTIONS DEFENDANT.  23 

recovers  in  trespass  or  trover,  from  one  who  has  injured  or  convert- 
ed the  property,  a  complete  and  full  satisfaction  in  damages  for  the 
value  or  injury,  it  is,  in  general,  a  bar  to  all  further  actions  for  the 
same  injury  against  the  same  defendant/ 

Where  goods,  obtained  by  trespass,  have  been  sold  by  the  tres- 
passer, and  the  owner  has  received  satisfaction  and  payment  from, 
or  otherwise  discharged  the  trespasser,  he  cannot  pursue  the  goods, 
nor  sue  the  person  to  whom  the  trespasser  has  sold  them.^  But  if 
the  owner  has  not  discharged  nor  sued  the  trespasser,  he  can,  after 
demand  made,  sue  any  one  who  has  possession  of  the  goods  from 
or  through  the  trespasser,  by  purchase  or  otherwise,  even  though 
they  are  held  honestly,  and  without  notice  of  the  trespass,''  When 
two  or  more  have  done  a  wrong,  the  plaintiff  may  elect  to  bring 
either  a  joint  or  separate  action  against  them,  and  he  may  have 
separate  actions  against  each;  but  can  have  but  one  satisfac- 
tion.'"(13) 

When  one  of  several  joint  trespassers  or  other  wrongdoers  is 
sued,  and  a  recovery  had  against  him  for  the  full  amount  of  the  in- 
jury committed  by  all,  and  he  is  compelled  to  pay  the  whole,  he  has 
no  claim  whatever,  on  that  account,  against  the  others.  The  law 
will  not  aid  them  in  adjusting  the  losses  which  they  have  sustained 
by  their  own  misconduct. 

A  person  promoting,  aiding,  or  assisting,  directly  or  indirectly, 
in  the  commission  of  an  injury  to  real  or  personal  property,  is  liable, 
(though  he  were  not  present  at  the  time  the  injury  was  committed,) 
in  the  same  manner,  and  to  the  same  extent,  as  if  actually  engaged 
in  committing  the  whole  wrong."  If  the  person  who  committed 
the  injury,  die  before  action  is  brought,  a  suit  may  be  sustained 
against  his  executors  or  administrators. "(14) 

Sec.  IV.  —  OF  the  conseQ-Uences  of  an  omission,  or  mistake,  in 

MAKING  PARTIES  DEFENDANTS. 

When  the  suit  is  against  two  or  more,  for  a  wrong  or  injury  which 
has  no  relation  to  a  promise  or  contract,  and  it  is  found  on  the  trial 
that  some  are  guilty  and  some  are  not,  the  justice  may  render  judg- 
ment against  those  who  are  guilty,  and  acquit  those  who  are  inno- 
cent. But,  when  the  suit  is  against  two  or  more,  upon  an  account, 
promise,  or  any  other  undertaking,  sounding  in  contract,  and  the 
plaintiff,  on  the  trial,  fails  to  prove  that  all  the  defendants  are  jointly 
liable,  or  if  it  appear  that  one  or  more  should  have  been  joined  as 

(i)  Wrigbt's  Rep.  744.     2  Saund.  47,  k,  (n)  (m)  2  Ohio  Rep.  54. 

(k)  Wright's  Uep.  360.   .S  Wils.  .304.  (n)  5  Oliio  Rep.  251. 

(I)  5  Ohio  Rep.  232.     3  Wils.  304.     Wright's  (o)  Stat.  669,  $90. 
Rep.  360. 

(13)  When  a  separate  actioti  is  brought  against  a  joint  trespa.sser  or  joint  wrong- 
doer, damages  are  assessed  for  the  whole  amount  of  the  injury  committed  by  all 
of  them.  The  plaintiff  may  thus  obtain  judgment  against  each,  but  he  can  only 
collect  the  amount  of  one  of  the  judgments  (which  he  is  at  liberty  to  select,)  and 
costs  on  the  others.      1  Jolins.  Itep.  290. 

(14)  See  Administrators  and  Executors,  Part  2,  Title  4. 


24  OF   THE   PARTIES    TO    ACTIONS.    [Prt.   1,  Ch.  4,  §5.] 

defendants,  then  judgment  of  nonsuit  should  be  rendered  against 
the  plaintiff'.     This  judgment  will  not  be  a  bar  to  a  new  action.(15) 

Sec.   V, OF  THE  CONSEQ.UENCES  OF  THE  DECEASE  OF  PARTIES,  WHILE 

A  SUIT  IS  PENDING. 

The  statutes  of  Ohio  provide  no  mode,  by  which  executors  or 
administrators  can  be  made  parties  to  suits  pending  before  a  magis- 
trate; nor  does  any  law  upon  this  subject-  seem  necessary,  as  the 
expense  incident  to  the  abandonment  of  an  old,  and  the  commence- 
ment of  a  new  action,  is  less  than  the  costs  of  reviving  an  action 
for  or  against  the  representatives  of  a  decedent.  The  general 
practice  of  justices,  where  the  plaintiff  or  defendant  dies  during 
the  pendency  of  a  suit,  is  to  note  on  the  docket  the  decease  of  the 
party,(16)  and  proceed  no  further  with  the  cause.  This  practice 
seems  the  best  that  can  be  adopted.  Each  party  will,  in  such  case, 
be  liable  for  the  costs  he  has  made.  A  new  action  may  be  insti- 
tuted by,  or  against,  the  executors  or  administrators  of  the  deceased 
party,  as  in  other  cases.  Where,  however,  there  are  two  or  more 
plaintiffs,  or  two  or  more  defendants,  and  one  or  more  of  them  dies 
leaving  a  survivor,  the  justice  may  note  on  the  docket  the  decease 
of  sucli  party,  and  proceed  in  the  cause,  and  render  judgment  for, 
or  against,  the  surviving  plaintiff  or  defendant,  and  issue  execution 
as  in  other  cases.? 

(p)  29  Stat.  71,  $69. 

(15)  It  is  always  for  the  interest  of  the  plaintiff  to  submit  to  a  nonsuit  where 
proper  parties  are  not  sued,  (except  where  the  action  is  for  a  tort  or  wrong-,)  as 
the  defendant,  upon  an  appeal,  can  take  advantag-e  of  the  error.     Stat.  513,  §44. 

(16)  The  entry  on  the  docket  may  be  thus:  "This  suit  abated  by  the  decease 
of  A B ." 


CHAPTER  V. 
OF  THE  COMMENCEMENT  OF  SUITS. 


Civil  suits  are  in  general  commenced,  by  issuing  a  summons  or  a 
capias.(l) 

A  summons  commands  the  constable  to  notify  the  defendant  to 
appear  at  a  certain  time  and  place  therein  mentioned,  to  answer 
the  complaint  of  the  plaintiff'.  A  capias  commands  the  officer  to 
take^  the  defendant  and  bring  him  forthwith  before  the  justice  by 
whom  it  is  issued,  to  answer  the  complaint  of  the  plaintiff. 

If  parties  appear,  agree  to  wave  process,  and  enter  a  suit  as  com- 
menced, the  justice  enters  the  action  on  his  docket,  and  also  states 
thereon,  that  the  parties  appeared  and  that  process  was  waved.(2) 
The  justice  may  then  proceed  with  the  trial,  and  render  judgment 
as  in  other  cases."- 

This  chapter  will  contain  a  brief  summary  of  the  law  relating  to 
the  following  subjects: 


SECTION    I.       OF   SUITS  BY   AND  AGAINST  A  NON-RESIDENT  OF  THE  COUNTY 
OR  TOWNSHIP. 
n.     WHEN  A  SUMMONS,  AND  WHEN  A  CAPIAS,  THE  FIRST   PROCESS. 

III.  REQ,UISITES  AND  FORM  OF  A  SUMMONS,  AND  THE  INDORSEMENTS 

THEREON. 

IV.  OF  THE  SERVICE  AND  RETURN  OF  A  SUMMONS. 

v.     REQ,UISITES  AND  FORM  OF  A   CAPIAS,   AND  THE    INDORSEMENTS 

THEREON. 
VI.    OF  THE  SERVICE  AND  RETURN  OF  A  CAPIAS. 


Sec  I. — OF  SUITS  by  and  against  a  non-resident  of  the  county  or 

TOWNSHIP. 

A  freeholder  or  other  person  residing  in  one  county,  may  be  sued 
in  another,  by  summons  or  capias,  if  the  writ  can  be  served  upon 
him  in  the  township  where  it  is  issued.     So  a  resident  of  a  county 

(a)  Stat.  511,  $29. 

(1)  As  to  suits  commenced  by  Attachment,  see  Part  2,  Title  8. 

(2)  Form  of  docket  entry  where  parties  enter  amicable  suit  without  process: 

V.  ^June  1,  1845. 

This  day  came  the  said  A-  B— ,  and  the  said  C D .     IJy  consent 

process  waved,  and  at  their  instance  cause  entered  as  commenced.      BUI  of  par- 

4 


26  OK    THK    COMMENCEIHENT    OF    SUITS,         IP7I.   1,   Ch.  5, 

who  is  neither  a  householder  nor  frcehokler,  may  he  sued  in  any 
townsliip  olsuch  county,  if  process  can  he  served  upon  him  within 
the  township  wliere  it  is  issued.''  No  jierson,  however,  who  is  a 
househokler  or  I'reeholder,  resident  ot"  a  county,  can  be  iiehl  to  an- 
swer to  a  suit  hrought  against  him  in  any  to^vnshi])  of  such  county ,> 
other  than  the  one  where  he  resides,  except  in  the  cases  following, 
namely:'' 

FirsL  —  Wl\cn  there  is  no  justice  of  the  peace  in  the  township  in 
which  the  defendant  resides. 

Second.  —  If  the  only  justice  of  tlie  peace  residing  therein  is  in- 
terested in  the  sul)jcct  matter  in  controversy,  or  stands  in  the  rela- 
tion of  father,  lather-in-law,  son,  son-in-law,  brt)thcr,  hrothcr-in-law, 
guardian,  ward,  uncle,  nephew,  or  cousin,  to  cither  of  the  parties. 
In  the  several  excepted  cases  above  mentioned,  the  })laintirt"  may 
bring  his  action  before  any  justice  of  an  adjoining  township  in  the 
same  county.  Process  is  issued  and  served,  and  proceedings  had  to 
final  judgment  and  execution,  precisely  as  if  the  defendant  resided 
in  the  township  where  the  action  is  brought. 

Third.  —  If  tw^o  or  more  persons  are  jointly,  or  jointly  and  seve- 
rally bound  in  a  contract,  or  liable  for  any  injury,  and  reside  in  dif- 
ferent townshi])s  of  the  same  county,  the  plaintitf  may  commence 
his  action  before  a  justice  of  the  township  in  which  any  one  of  the 
debtors,  or  other  persons  liable,  resides.  Process  is  issued  against 
the  debtors,  directed  to  any  constable  of  the  township  in  which  the 
suit  is  brought,  and  is  served  upon  all  the  defendants.  Execution 
is  issued  and  executed  in  the  same  manner  as  if  the  defendants  all 
resided  within  the  township. 

In  actions  against  partners  and  joint  contractors,  suit  must  in 
general  be  brought  against  all  the  partners  or  joint  contractors.  It 
is  seldom  that  partners  reside  in  dilierent  counties,  or  that  contracts 
are  so  worded  as  to  make  them  joint  only,  instead  of  joint  and 
several.(3)  But  there  is  no  statute  which  authorizes  suit  to  be  insti- 
tuted before  a  justice  where  one  or  more  of  those  who  must  neces- 
sarily be  made  defendants,  reside  out  of  the  county.  The  statute 
only  provides  for  cases  where  defendants  reside  in  different  town- 
ships of  the  same  county .'*  No  difficulty,  however,  can  arise  where 
a  contract  is  joint  and  several  in  its  terms;  for  then  separate  suits 
against  each  of  the  contractors  may  be  brought  in  the  townships  of 
the  several  counties  where  they  respectively  reside. 

Fourth.  —  For  a  trespass  upon  personal  property,  suit  may  be 
brought  in  the  township  where  the  trespass  was  committed. 

If  it  appears  from  the  docket  or  the  return  of  the  constable,  that 
householders  or  freeholders,  resident  of  the  county,  were  sued  out 

(I))  See  Stat.  508,  $12. 

ticulars  filed.  [Here  stale  the  cause  of  action,  and  proceed  according  to  the  forms 
which  will  be  found  in  Fart  1,  Chap.  18,  §2.] 

For  the  form  of  a  docket  entry,  where  judg-ment  is  confessed,  see  Part  1,  Chap. 
18,  §3. 

(3)  As  to  what  contracts  are  joint  and  several,  or  joint  only,  see  page  15, 
note  2. 


§1,2.]  OF    THE    COMMENCEMENT    OP    SUITS.  27 

of  their  township,  the  cause  for  so  doing  should  also,  in  general,  be 
stated  on  the  docket.*^ 

Previous  to  issuing  a  summons  or  capias,  at  the  suit  of  a  nonresi- 
dent of  the  township,  the  justice  may  require  him  to  give  security 
for  costs.  This  the  plaiutift'  may  do  by  depositing  with  the  justice 
a  sufficient  sum  to  cover  costs,  or  by  entering  into  a  recognizance 
to  the  defendant,  with  sufficient  surety,  resident  in  the  township, 
conditioned  for  the  payment  of  all  costs  that  may  accrue  in  the 
prosecution  of  the  action.*^(4) 

Sec.  II. WHEN  A  SUMMONS,  AND  WHEN  A  CAPIAS,  THE  FIRST  PROCESS. 

^No  capias  ad  respondendum  for  the  body  can  be  issued,  unless 
the  creditor,  his  agent  or  attorney,  shall  make  oath  before  a  judge, 
justice  of  the  peace,  or  clerk  of  the  supreme  court  or  court  of  com- 
mon pleas,  that  there  is  a  debt  or  demand  justly  due  to  such  creditor, 
specifying,  as  nearly  as  may  be,  the  nature  and  amount  thereof,  and 
establishing  one  or  more  of  the  following  particulars: 

First.  —  That  the  defendant  is  about  to  remove  his  property  out 
of  the  jurisdiction  of  the  court  with  intent  to  defiTiud  his  creditors:  or, 

Second.  —  That  he  is  about  to  convert  his  property  into  money, 
for  the  purpose  of  placing  it  beyond  the  reach  of  his  creditors:  or. 

Third.  —  That  he  has  property  or  rights  in  action,  which  he 
fraudulently  conceals:  or. 

Fourth. — That  he  has  assigned,  removed,  or  disposed  of,  or  is  about 
to  dispose  of,  his  property,  with  intent  to  defraud  his  creditors:  or, 

Fifth.  —  That  he  fraudulently  contracted  the  debt  or  incurred 
the  obligation  for  which  suit  is  about  to  be  brought:  or. 

Sixth.  —  That  he  is  about  to  remove  his  body  out  of  the  town- 
ship: or, 

Seventh. — That  he  has  converted  his  property  into  money  for 
the  purpose  of  placing  it  beyond  the  reach  of  his  creditors:  or, 

Eighth.  —  That  he  is  not  a  citizen  or  resident  of  this  State. 

(c)  Wright's  Rep.  709-  (d)  Stat.  523,  §95.  (e)  Stat,  647,  648,  649. 

(4)  Form  of  docket  entry  and  recognizance  for  costs,  where  the  plaintiff  is  a 
non-resident  of  the  township. 

.Sf/er  entering  on  the  docket  the  names  of  the  parties,  plaintiff  and  defendant,  and 
the  cause  of  action,  proceed  as  follows. ■ 

"The  said  A B ,  being  a  non-resident  of  the  township,  was  required 

to  give  security  for  costs;  and  thereupon  he  and  J F ,  came  before  me, 

and  acknowledged  themselves,  jointly  and  severally  to  owe  and  st:ind  indebted  to 

the  said  C D ,  defendant,  in  the  sum  of  seventy-five  dollars,  to  be  levied 

upon  tiieir  respective  goods  and  chatties,  lands  and  tenements,  upon  this  condition, 

that  if  said  A 15 and  J F shall  pay  all  the  costs  that  may  accrue 

in  the  prosecution  of  the  said  action,  of  said  A B ,  against  C D ■, 

when  judgment  is  rendered  therein  by  me,  then  the  above  recognizance  to  be  void, 
otherwise  to  be  in  full  force.  \^^igntd,'\ 

A B ,  seal. 

J F ,  seal. 

Taken  and  acknowledged  before  me 

this day  of ,  A.  D.  . 

G !I ,  Jus.  Peace." 

An  action  of  debt  may  be  brought  on  the  recogniz.ance. 


28  OF    THE    COMMENCEMENT    OF    SUITS,         [P/'t.   1,   Ch.  5, 

The  affidavit  must  be  made  out  and  filed  before  a  capias  issues. 

The  affidavit  may  be  in  the  form  iollowinp;: 

A B , 


V. 

-  D- 


Tlie  State  of  Ohio, county, township,  ss. 

Before  me  personally  appeared  A B ,  above  named;  [or,  if 

the  fact  be  50,  saj/:  l^efore  me  personally  appeared  E II ,  the 

authorized  agent  of  A B ,  al)ove  niimcd,]  who  made  solemn 

oath  that  there  is  justly  due  to  said  A B ,  from  said  C 

D ,  a  demand  amounting  to  the  sum  of dollars, 

cents,  or  more,  which  is  founded  upon  [/ie7T,  state  the  nature^  as  near 
as  maxj  6c,  of  the  debt  or  demand.']     And  the  said  affiant  further 

makes  oath,  that  the  said  C D ,  [here  state  some  one  of  the 

particulars  which  nill  authorize  the  issuing  of  a  capias^  as  he  verily 
oelieves.  [(S'/i^?2cf/] 

A B . 

Sworn  to  and  subscribed  before  mc  this 

doy  of ,  A.  D.,  18—. 

J H ,  Jus.  Peace. 

If  there  be  two  or  more  defendants  the  creditor  cannot  have  a 
capias  unless  the  causes  for  issuing  the  same  exist  against  all  the 
defendants.  For  instance,  if  one  of  the  defendants  is  about  to  re- 
move his  property  out  of  the  jurisdiction  of  the  court,  with  intent 
to  defraud  his  creditors,  or  has  done  or  is  about  to  do  any  act 
which  would  justify  an  affidavit  and  the  issuing  of  a  capias,  the 
creditor  by  joining  in  the  action  one  or  more  other  defendants, 
against  whom  the  same  causes  for  issuing  a  capias  do  not  exist,  will 
preclude  himself  from  having  a  capias.  Therefore  where  there  is  a 
joint  and  several  contract,  and  one  of  the  contractors  is  liable,  upon 
affidavit  filed,  to  be  taken  by  a  capias,  the  creditor  should,  if  he  de- 
sires a  capias,  commence  a  separate  suit  against  the  party  liable  to 
arrest  upon  a  capias.  When  the  contract  is  joint  only  and  not  joint 
and  several,  a  joint  action,  as  we  have  already  seen,  must  be  brought; 
and  in  such  case  the  facts  stated  in  the  affidavit  must  be  true  as  to 
all  the  contractors. 

The  sixth  section  of  the  law  for  abolishing  imprisonment  for  debt, 
so  far  as  the  same  requires  a  bond  to  be  filed  by  the  creditor,  is  re- 
pealed.s' 

Where  the  person  against  whom  suit  is  about  to  be  commenced, 
is  at  the  time  privileged  from  arrest,  the  justice  must  issue  a  sum- 
mons,**  It  is  proper,  therefore,  to  here  name  the  persons  who  are 
privileged  from  arrest. 

Members  of  Congress.  —  Senators  and  representatives  in  Congress 
are  privileged  from  arrest  diu'ing  their  attendance  at  the  session 
of  their  respective  houses,  and  in  going  to  and  returning  from  the 
same.' 

(c)  Stat.  649,  $10.  (Ii)  Stat.  76,  $8.  (i)  Const.  Unite<l  States,  Art.  1,  $6. 


§2.]  OF    THE    COMMENCEMENT    OF    SUITS.  29 

Members  and  Officers  of  the  Legislature  of  this  State.  —  The  mem- 
bers of  the  General  Assembly,  their  clerks,  sergeants-at-arms,  door- 
keepers, and  messengers,  are  privileged  from  arrest  during  the  sit- 
ting of  the  Legislature,  and  also  while  traveling  to,  and  returning 
from  the  place  of  their  meeting,  allowing  one  day  for  every  twenty- 
five  miles  distance,  by  the  road  most  usually  traveled.''  The  offi- 
cer who  arrests  a  member,  or  any  one  of  the  above  named  officers, 
of  the  General  Assembly,  during  the  time  he  is  entitled  to  privilege, 
must  forfeit  and  pay  one  hundred  dollars.'  The  privilege,  does  not 
extend  to  cases  of  treason,  felony,  or  breach  of  the  peace;  but  if  a 
member  or  officer  of  the  General  Assembly  is  arrested  for  a  crime, 
the  person  who  issues  the  process  on  w'hich  the  arrest  is  made,  must 
forthwith  give  written  notice  thereof  to  the  house  of  which  the 
person  arrested  is  a  member  or  officer.™ 

Ambassadors  and  their  Servants.  —  All  writs  or  process,  whereby 
any  ambassador  or  other  public  minister  of  any  foreign  prince  or 
state,  authorized  and  received  as  such  by  the  President  of  the  Uni- 
ted States,  or  any  domestic,  or  domestic  servant,  of  any  such  public 
minister,  may  be  arrested  or  imprisoned,  or  his  or  their  goods  or 
chattels  may  be  seized,  are  void."  And  any  person  suing  out  such 
process,  or  issuing  or  serving  it,  is  liable  to  a  fine,  in  the  discretion 
of  the  court,  and  imprisonment,  not  exceeding  three  years."  This 
statute  does  not  however  extend  to  any  citizen  or  inhabitant  of  the 
United  States  who  shall  have  contracted  debts  prior  to  his  enterino- 
into  the  service  of  any  ambassador  or  other  public  minister,  which 
debts  are  still  due;°  nor  to  consuls,  or  their  servants.P 

Judges.,  Officers.,  Suitors.,  ^-c.  of  Courts.  —  Judges  of  the  supreme 
court,  and  the  presiding  judges  of  the  courts  of  common  pleas, 
while  attending  court,  and  during  the  time  necessarily  employed  by 
them  in  gomg  to  and  returning  from  the  courts  which  the  law  makes 
it  their  duty  to  attend,  are  privileged  from  arrest.  So  the  associate 
judges  of  the  courts  of  common  pleas,  during  the  sitting  of  their  res- 
pective  courts,  and  all  attorneys,  counselors  at  law,  clerks,  sheriffs, 
coroners,  constables,  criers,  and  all  suitors,  witnesses  and  jurors, 
are  privileged  from  arrest  while  attending  court,  and  while  goin"' 
to  and  returning  therefrom,^ 

Miliiin  of  this  State.,  and  Soldiers.,  S^c.  of  the  United  States. — Citi- 
zens of  this  state,  while  under  the  order  of  their  commanding  officers 
and  doing  military  duty,  or  while  going  to,  or  returning  from,  the 
place  of  duty  or  parade,""  are  privileged  from  arrest.  Officers  and 
soldiers  of  the  Revolutionary  War,  are  at  all  times  privileged  from 
arrest  on  any  process  or  execution  for  any  debt,  claim  or  demand, 
where  the  cause  of  action  is  founded  upon  contract.'  All  non-com- 
missioned officers,  musicians,  seamen  and  marines,  who  arc,  or  shall 
be  inlisted  in  the  service  of  the  United  States,  and  the  non-commis- 

(k)  Stat.  75  $1.  (n)  2  Laws  U.  S.  97.  Ing.  Abr.  464.  (q)  Stat.  75,  76,  $4,  5. 

(I)  Id.  ib.  $2.  (o)  Id.  III.  $26.  (r)  M.  76,  $6. 

(m)  Id.  76,  $9.  (p)  3  M.  and  S.  284.  (s)  Id.  $7. 


30  OF    THE    COMMENCEMENT    OF    SUITS.  [Prt.   1,  Ch.  6, 

sioneJ  officers  and  musicians  who  arc,  or  shall  lie,  inlisted  in  the 
army  of  the  United  States,  are  exempted  durinu;  their  term  of  ser- 
vice, from  all  personal  arrest  for  any  dcht  or  contract.'  All  non- 
commissioned otficers,  artificers,  privates  and  musicians,  who  are,  or 
shall  be,  inlisted,  and  the  non-commissioned  otficers,  artificers,  pri- 
vates and  musicians  of  the  militia,  or  other  corps,  who  at  any  time 
may  he  in  the  actual  service  of  the  United  States,  shall  be  exempt- 
ed during  their  term  of  service  from  all  personal  arrest  for  any  debt 
or  contract.''  And  no  non-commissioned  olRcer,  musician,  or  pri- 
vate can  be  arrested  nor  are  they  subject  to  arrest,  or  to  be  taken  in 
execution,  for  any  debt  under  the  sum  of  twenty  dollars,  contract- 
ed before  inlistment,  nor  for  any  debt  contracted  after  inlistmenf*' 

Voters  at  elections.  —  All  persons  legally  (qualified  to  vote  for  mem- 
bers of  the  General  Assembly,  during  their  attendance  at  an  elec- 
tion, and  while  on  their  way  going  to  and  returning  from  an  election, 
are  privileged  from  arrest.^ 

Females.  —  Every  female  is  exempted  from  arrest  or  imprison- 
ment on  any  process  for  any  debt,  claim,  or  demand,  where  tho 
cause  of  action  is  founded  upon  a  contract,  express  or  implied.* 

Insolvents.  —  The  certificate  granted  by  the  court  of  common 
pleas  to  an  insolvent,  protects  him  from  arrest  upon  any  debt  men- 
tioned in  his  schedule.''  An  officer  would  be  liable  to  an  action  of 
trespass,  if  he  held  a  defendant  in  custody,  who  produced  his  cer- 
tificate.'' So,  if  a  debtor  hold  the  certificate  of  the  commissioner  of 
insolvents,  and  his  application  for  relief  be  pending  in  court,  it  will 
exempt  him  from  arrest  upon  any  debt  mentioned  in  his  schedule. 
The  officer,  upon  the  production  of  the  certificate,  should  discharge 
the  defendant,'^  returning  a  copy  of  the  certificate  with  the  writ.(5) 
Where  a  discharge  has  been  obtained  in  another  State,  under  in- 
solvent laws  wliich  exempt  the  person  from  imprisonment,  but 
leave  the  future  acquisitions  of  the  debtor  liable  to  execution,  it 
will  not  protect  the  debtor  from  arrest  and  payment  of  the  debt 
here.^  But,  where  the  insolvent  laws  of  another  State  or  country 
not  only  discharge  the  debtor  from  imprisonment,  but  also  discharge 
the  debt  itself,  then  he  can  neither  be  arrested  here  nor  can  such 
debt  be  recovered.^ 

Executors.,  Administrators.,  and  Corporations — Persons  prose- 
cuted in  their  representative  character,  as  executors,  administrators, 
state,  county,  or  township  officers,  or  other  corporate  bodies,  must, 
in  general,  be  sued  by  summons,  unless  they  have  entered  into  such 
a  personal  contract  as  to  make  their  own  property  liable  for  the 
payment  of  the  debt. 

(0  Ing.  Abr.  414,  $5.  (a")  Stat.  76,  $6.  (d)  2  Cowcw's  Rep,  626. 

fv)  Id.  10.  $4.  (b)  Id.  448,  $36.  (e)  1  Ohio  Rep.  236.     2  Cow.  633. 

(w)  Id.  13,  $17.  (c)  Id.  lb.  445,  $21,  22.  12  Jolins.  Rep.  142. 

(5)  The  form  of  the  return  by  the  constable,  in  such  a  case,  can  be  readily 
made  out  from  the  one  given  in  Part  1,  chap.  24,  §2. 


§3,  3.]  OF    THE    SUMMONS,  31 

If  a  citizen  is  charged  with  the  commission  of  a  felony  or  breach 
of  the  peace,  whatever  may  be  his  station,  lie  has  no  personal  privi- 
leges; but  process  may,  and  should  be,  issued  against  him,  as  against 
the  most  humble  citizen. 

Sec.    III. REQUISITES    AND    FORM   OF  A  SUMMONS,    AND    THE    INDORSE- 
MENTS THEREON. 

A  summons  must  specify  a  certain  day,  not  exceeding  twelve 
days  from  the  date  thereof,  and  also  a  certain  place,  at  which  the 
defendant  is  to  appear  and  answer  the  same.*^  The  justice  must 
also  indorse  upon  the  summons  the  precise  amount  demanded  by 
the  plaintiff,  together  with  the  costs  that  have  then  accrued.® 

The  following  rules  may  be  observed,  in  naming  the  action  in 
the  writ:  Where  suit  is  brought  upon  a  bond  or  upon  any  sealed 
contract  for  the  payment  of  money,  the  plea  or  action  named  in  the 
writ  may  be  '•'•Debt.''''  If  the  suit  is  brought  upon  any  other  sealed 
contract,  for  doing  any  other  act,  except  the  payment  of  money, 
the  plea  or  action  may  be  '■''  Covenant.''''  And  upon  all  other  con- 
tracts, not  under  seal,  whether  written  or  verbal,  express  or  implied, 
the  plea  or  action  named  in  the  writ  maybe  '-'' trespass  on  the  case.''"' 
So,  Trespass  on  the  case  is  the  proper  plea  or  action  to  name  in  the 
writ,  where  the  suit  is  brought  for  any  fraud,  breach  of  duty,  or 
for  any  other  wrong  or  injury.^  If,  however,  the  suit  is  brought 
for  an  injury  to  personal  or  real  property,  the  plea  or  action  named 
in  the  writ  may  be  "  Trespass  on  land^''  or  ^  Trespass  on  personal 
property^'  as  the  case  may  be;(6)  and  if  brought  for  the  conversion 
of  the  property  of  the  plain  till'  by  the  defendant,  it  may  be  '-'•Tro- 

FORM    OF    SUMMONS,'' 

State  of  Ohio, county,  ss. 

To  any  constable  of  the  township  of ,  Greeting: 

You  are  hereby  commanded  to  summon  C D ,  to  be  and 

appear  before  me,  G H ,  a  justice  of  the  peace,  at  my 

office,  in  the  township  aforesaid,  on  the  day  of in  the 

year  eighteen  hundred  and ,  at o'clock,  A.  M.,  \or  P.  M., 

as  the  case  may  6e,]  of  that  day,  to  answer  unto  A B ,  in  a 

plea  of  debt,  \or  trespass  on  the  case,  or  trespass  on  land,  or  per- 
sonal property,  or  other  action  as  the  nature  of  the  action  may  6e,] 
and  of  thfS  writ  make  legal  service,  and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G il ,  J.  V.  ISeal'] 

(d)  Stat.  509,  $14.  (e)  Id.ib.^lS.  (g)  6  Ohio  Rep.  388.  (li)  Stat.  529. 


(6)  It  will  be  perceived  that,  as  tlie  two  actions  of  Trespass  and  Trespass  on  the 
Case  are  above  described,  either  can  be  maintained  for  an  injury  to  personal  pro- 
perty. The  distinction  between  them  is  not  material  in  suits  before  justices,  (B 
Oliio  Rep.  388,)  and  to  make  the  distinction  understood  would  be  useless  and  per- 
haps impossible. 


32  OF  THE  SUMMONS.  [Prt.  1,  Ck.  5, 

If  the  suit  be  brought  by  partners,  the  summons  should  read, 
"  To  answer  unto  A B and  C D ,  partners,  tra- 
ding under  the  name  and  firm  of  [Iiere  insert  the  najne  of  the  firm 
hxj  lehich  the  partner  sliip  is  generally  hwicn^  as  '■'•Harper,  Brothers, 
&  Co."] 

If  brought  by  administrators,  say,  "To  answer  A —  B —  and  C — 
D — ,  as  administrators  of  the  estate  of  E —  F — ,  deceased." 

If  brought  by  husband  and  wife,  say,  "••  To  answer  unto  J —  J — , 
and  N —  liis  wife,  late  N —  B — ." 

If  brought  AGAINST  partners,  executors,  administrators,  or  hus- 
band and  wife,  they  should  be  described  as  such,  in  the  manner 
above  stated. 

If  the  action  is  brought  on  a  penal  statute,  where  part  of  the 
penalty  is   given  to  the   prosecutor,   and  part  to  the  townsiiip  or 

county,  &:c.,  the  writ  should  be,  "  To  answer  unto  A B , 

[tJie  prosecutor.^  \\\\o  sues,  as  well  for  [liere  vaine  the  corpoi'ation 
which  is  entitled  to  a  jiortion  of  tlie penalty.^  as  for  himself." 

FORM  OF  THE  ENDORSEMENT  UPON  THE  WRIT. 

The  plaintiff  demands  the  sum  of  $ 

Costs — Summons,         .         .         -         _  12* 

Entering  discontinuance,  if  settled,       10 — 22i 

G H ,  J.  p. 


Sec.  IV. OF  THE  SERVICE  AND  RETURN  OF  A  SUMMONS. 


The  summons  must  be  served  at  least  three  days  before  the  time 
mentioned  in  it,  for  the  appearance  of  the  defendant.* 

It  may  be  served  by  reading  to  the  defendant,  or  if  he  demands 
a  copy,  the  same  must  be  delivered  to  him.  If  the  defendant  is 
absent,  the  service  must  be  made  by  copy  left  at  his  dwelling  house, 
or  place  of  abode.''  It  is  proper,  though  not  necessary,  in  such 
case,  for  the  constable  to  inform  the  wife  of  the  defendant,  if  she  is 
at  home,  or  some  person  above  the  age  of  fourteen,  who  may  be 
found  at  the  defendant's  dwelling  house  or  place  of  abode,  of  the 
object  of  leaving  the  writ.  If  the  defendant  has  actually  moved 
away,  a  summons  cannot  be  served  by  leaving  a  copy  at  the  place 
w^here  he  resided.  If  a  copy  of  a  summons  is  left  in  the  absence 
of  the  defendant,  at  his  store,  or  other  place  than  his  dwelling  house 
or  place  of  abode,  it  will  not  be  a  service.' 

In  suits  against  a  school  district,  the  summons  is  served  by  leav- 
ing an  attested  copy  of  the  process  with  the  district  clerk,™  and  in 
general,  where  a  corporation  is  sued,  the  summons  is  served  upon 
the  mayor,  president,  or  other  head  officer." 

If  the  summons  is  issued  against  a  resident  householder  or  resi- 
dent freeholder  of  the  county,  who  resides  in  a  different  township 

(i)  Stat.  509,  $14.  (1)  Wright's  Rep.  563.  (n)  Dunl.  Prac.  153. 

(k)Id.ib.  $15.  (ni)Stat.  839,  $41. 


§4,  5.]  OF    THE    SUMMONS -CAPIAS.  S3 

from  the  one  where  the  process  is  issued,  the  constable,  if  he  find 
the  defendant  within  his  township,  should  serve  the  process,  leaving 
the  rights  of  the  defendant  to  be  afterwards  determined  by  the 
justice.  In  general  a  summons  cannot  be  served  out  of  the  town- 
ship; but  there  are  exceptions  to  this  rule,  which  have  been  before 
stated.(7) 

The  constable  must  endorse  on  the  summons  the  time  and  manner 
of  service,  and  subscribe  his  name  thereto,**  and  deliver  the  writ  to 
the  justice  who  issued  it,  at  or  before  the  time  named  therein  for 
the  appearance  of  the  defendant. 

FORMS  OF  RETURNS. 

Personally  served  on  the day  of ,  1 8 — ,  by  reading  this 

writ  to  the  defendant. 

Fees cents.  I J ,  Constable. 

Personally  served  on  the day  of ,  1 8 — ,  by  delivering  a 

copy  of  this  writ  to  the  defendant,  which  was  demanded. 

Fees cents.  I J ,  Constable, 

Served  on  the  — —  day  of ,  1 8 ,  by  leaving  an  attested 

copy  of  this  writ  at  the  defendant's  dwelling  house,  [o?-  "■  place  of 
abode,"  as  the  case  may  6e,]  in  the  presence  of  his  wife,  [or  other 
person  above  fourteen  years  of  age^  naming  sitch  person^  and  inform- 
ed her  of  the  contents,  the  defendant  being  absent. 

Fees cents.  I J ,  Constable. 


Sec.  V. REQUISITES  AND  FORM  OF  A  CAPIAS  AD  RESPONDENDUM. 

A  capias  must  be  made  returnable  forthwith  after  the  service 
thereof,  and  the  justice  must  endorse  upon  it  the  precise  sum  de- 
manded by  the  plaintiff,  with  the  costs  that  have  then  accrued.* 
The  form  of  the  indorsement  is  the  same  in  substance,  as  that  upon 
a  summons,  which  has  already  been  given, (8) 

Where  the  suit  is  by  partners,  husband  and  wife,  or  against  part- 
ners, &:c.,  they  must  be  described  in  the  manner  heretofore  directed, 
where  a  summons  is  issued.(8) 

FORM  OF  A  CAPIAS.^ 

State  of  Ohio, county,  ss. 

To  any  constable  of township.  Greeting: 

You  are  hereby  commanded  to  take  the  body  of  C D- 


and  him  forthwith  bring  before  me,  G H ,   a  justice  of  the 

peace,  at  my  office,  in  said  township,  to  answer  unto  A B , 

in  debt,  [or  '•'-  damages,"  as  the  fact  may  6e,]  in  the  sum  of  $ , 

(d)  Stat.  509,  $16  (e)  Stat.  509,  $13.  (g)  Id.  529. 

(7)  See  the  first  Section  of  this  Chapter. 

(8)  For  these  directions,  see  page  32. 


34  OF    THE    CAPIAS.  [Pr/.    1,   Cft.   5, 

\here  insert  the  sum  that  is  dubnrd  to  he  due^  ;ind  of  this  writ  make 
legal  service  and  due  return. 

Given  underlay  liand  and  seal,  this day  of ,  A.  D,  18 — . 

C< II ,  J.  p.  [seal.l 

Sec.  VI. — of  tijk  service  and  return  of  a  capias  ad  respondendum. 

No  person  can  be  arrested  upon  a  capias  ad  rcsjiondcndum,  in 
the  senate  chamber,  or  house  of  representatives,  during  their  sitting; 
or  in  any  court  of  justice,  during  the  sitting  of  the  court;  nor  can 
such  writ  be  served  upon  Sunday,  nor  upon  the  fourth  day  of  July.'' 
If.  however,  a  citizen  is  charged  with  treason,  felony,  or  a  breach  of 
the  peace,  whatever  may  be  his  station,  he  has  no  personal  privi- 
ieges;  but  may  be  arrested  at  any  time,  and  in  any  place. 

If  the  township  in  whicii  the  constable  has  a  right  to  serve  the 
writ,  is  bounded  by  a  river  or  water-course,  which  divides  this  and 
a  neighboring  State,  and  the  defendant  is  u])on  such  river  or  water- 
course, the  constable  may  there  arrest  him.' 

If  the  justice  has  jurisdiction  over  the  subject  matter  of  the  suit, 
although  the  pi'oceedings  whereon  the  writ,  v/hether  a  capias,  war- 
rant, or  execution,  is  grounded,  are  irregular,  or  eri'oneous,  or  even 
if  the  process  itself  is  irregularly  issued,  yet  it  will  be  sufficient  to 
justify  the  officer,  and  he  is  bound  to  execute  it.''  Therefore,  when 
a  suit  is  brought  against  an  officer  for  a  false  return  or  an  escape,  or 
for  any  other  omission  of  duty  in  the  execution  of  a  writ,  it  will  be 
no  defence,  and  he  is  not  permitted  to  siiow,  that  the  process  or  the 
proceedings  under  which  it  issued  were  irregular  or  erroneous.'  If, 
however,  a  justice  should  issue  a  capias  in  an  action  of  slander,  or 
for  other  cause  of  action  over  which  he  has  no  jurisdiction,  the 
constable  will  be  liable  to  the  defendant  for  false  imprisonment,  if 
he  executes  the  writ.  Although  the  justice  and  plaintiff  would,  at 
all  events,  be  liable  in  such  case,  to  the  defendant;  yet  the  better 
opinion  seems  to  be,  that  the  constable  would  not  be  liable,  unless  it 
appeared  from  the  face  of  the  writ,  or  the  constable  otherwise  knew 
that  the  proceeding  was  for  slander,  or  other  cause  of  action  not 
within  the  jurisdiction  of  a  magistrate."' — It  M'ould  be  the  duty  of 
the  constable  not  to  execute  a  writ  of  this  kind. 

If  the  defendant  is  sued  by  a  wrong  name,  the  officer  cannot 
arrest  him  on  the  capias,  unless  he  is  known  as  well  by  the  name 
mentioned  in  the  writ,  as  by  his  real  name."  If  the  defendant  is 
known  by  both  names,  or  used  the  name  in  the  writ  in  the  particu- 
lar transaction,  the  officer  may,  but  he  is  not  bound  to,  arrest  the 
defendant.  Even  after  an  arrest  under  such  circumstances,  he  may 
if  he  choose,  discharge  the  defendant."  The  law  is  different  in 
relation  to  an  execution.(9) 

(h)  Stat.  76,  56.  (m)  5  Wend.  Rep.  170.     Wright's  Rep.  709. 

(i)  Id.  il).  $8.  (n^  7  Cow.  Rep.  332.    6T.  R.234.    2Campb. 

(k)  3  Wils.  345.  Cro.  Jac.  280— 2S9.  2  S.-iund.       '     270.     8  Ea.=t  328.    3  Camph.  108. 

100.     Wright's  Rep.  709.  (o)  1  B.irn.  and  Aid.  647. 

(1)  10  Co.  76;  Stra.  993;  1  Ld.  Ray.  397;  8  T.  R.  424;  Wright's  nep.714. 

(9)   See  Part  1,  Chap.  24,  §2.       . 


§6.]  OP    THE    CAPIAS,  3S 

In  making  the  arrest  the  officer  need  not,  in  general,  actually 
seize  or  touch  the  defendant's  body;  it  is  sufficient  it"  the  defendant 
is  within  the  power  of  the  officer  and  submits  to  the  arrest?  Words, 
as  "I  arrest  you,"  will  not,  however,  of  themselves  constitute  an 
arrest.'!  But  if  the  officer  use  such  words,  and  the  defendant  ac- 
quiesce, and  go  with  the  officer,'  or  if  the  officer  should  go  into  a 
room  and  tell  the  defendant  that  he  arrests  him,  and  lock  the  door,' 
the  arrest  would  be  complete.  It  is  not  necessary  that  the  officer's 
should  be  the  hand  that  arrests;  for,  when  necessary,  he  moy  call 
others  to  his  assistance,  and  in  such  case,  the  acts  of  his  assistants 
will  be  deemed  his  own,  so  long  as  he  himself  is  acting  in  the 
arrest,  or  is  near  at  hand,  though  not  actually  in  sight.' 

The  officer  cannot  legally  break  open  an  outer  door  or  window 
of  the  dwelling  house  of  the  defendant,  to  make  an  arrest;  nor,  if 
refused  admission,  can  he  raise  the  latch  and  enter;  but,  having 
once  gained  peaceable  admission  into  the  house,  he  may  break 
open  an  inner  door,  even  if  it  be  the  door  of  a  lodger.'  Before  he 
breaks  an  inner  door,  he  need  not  demand  admittance;  the  law 
however,  will  not  permit  him  to  use  any  unnecessary  violence.'' 
By  breaking  open  an  outer  door,  the  officer  becomes  a  trespasser. 

When  the  defendant  is  in  the  house  of  another  person,  the  officer 
cannot,  in  general,  break  open  the  house  to  arrest  the  defendant. 
But  if  a  defendant  flee  to  the  house  of  another,  to  avoid  the  officer, 
or  if  the  owner  of  the  house  purposely  secrete  him,  the  outer  door 
may  be  broken  open  to  arrest  the  fugitive.*  In  such  case,  and  in 
all  others,  the  officer  should  request  admission,  and  make  known, 
as  well  as  he  can,  his  object,  before  he  breaks  open  the  outer  door. 
When,  however,  the  defendant  does  not  enter  the  house  of  another 
for  the  purpose  of  evading  the  process,  or  the  owner  does  not  con- 
nive with  him  in  that  purpose,  it  seems  that  the  officer  would  not  be 
justified,  upon  admission  being  refused,  in  breaking  open,  or  even 
raising  the  lach  of  the  door  and  entering. ''  He  may  peaceably 
enter  the  open  door  of  the  house  of  another,  provided  the  defend- 
ant be  actually  therein;  but  if  in  such  case  it  turn  out  that  the  de- 
fendant was  not  there,  the  officer  is  a  trespasser,*^  unless  the  owner 
of  the  house  or  some  of  his  family  asked  him  to  '•'•toalk  hi''  when 
he  knocked  at  the  door,  or  otherwise  admitted  him.  A  recovery  of 
damages,  in  such  case,  would  not,  probably,  be  more  than  one  cent. 
If  the  defendant  be  in  the  house  of  another  person,  the  officer,  after 
having  entered  the  open  door,  may  break  open  inner  doors  in 
order  to  arrest  the  defendant.*  lie  need  not  demand  admittance 
before  he  breaks  open  the  inner  doors,  unless  he  is  satisfied  they 
will  be  immediately  opened  to  him.  If  the  defendant  be  not  in  the 
house  of  such  other  ])erson  when  the  inner  doors  are  broken  open, 
the  officer  will  be  liable  for  all  damages  as  a  trespasser;  even 
though  there  v/as  probable  cause  to  sup])0se  that  the  defendant  was 
there.* 

(p)  1  Weiifl.  Rep.  210.  (w)  4  Taunt.  619. 

In)  1  Cii.  and  V.  153.     H  Eng.  C.  L.  Rnp.  153.  fa)  5  Co.  91. 

(r)  1.1.  il..35.  R.  N.  P.  62.  (I))  7  Law  l,il).  C5. 

(8)  Rep.  Temp.  Manl.  301.  (c)  1  En;;.  (.'.  h.  Rep.  2G0,  per  Gibb»,  C.  J. 

(t)  Cow  p.  6.!.     10  Johns.  Rrp.  06.  (d)  4  Tannt.  619. 

(v)  Cow  p.  Rep.  1.  (e)  6  Taunt.  246.     5  Taunt.  Te.'i. 


36  OF    THK    CAPIAS.  [Pr^  1,  C/i.  5, 

The  difference  between  the  officer  breaking  open  the  inner  doors 
of  the  defendant's  house,  and  those  of  another  person,  to  make  the 
arrest,  is  tiiis:  the  justiiication  of  the  officer,  for  breaking  the  inner 
doors  of  another,  to  arrest  the  defentlant,  depends  upon  the  fact, 
whether  the  defendant  was  actually  in  the  house;  but,  where  the 
inner  doors  of  the  defendant's  own  house  are  broken  open,  the  offi- 
cer will  be  justified,  although  tlie  defendant  was  not  there,  if  he 
was  honestly  seeking  the  defendant. 

The  protection  which  the  law  gives  to  the  outer  doors  and  win- 
dows of  the  defendant's  house,  does  not  extend  to  a  store,  or  other 
out-houses,  disconnected  and  standing  separate  and  apart  from  the 
dwelling  house,  and  not  within  the  curtiiage.''(10)  They  may  be 
broken  open;  and  if  the  defendant  is  in  the  barn,  or  other  out- 
house of  another,  it  may  be  broken  open,  under  the  same  circum- 
stances and  liabilities,  as  the  inner  door  of  the  dwelling  house  of 
another  may  be  broken  open. 

The  arrest  is  complete  when  the  defendant's  body  is  touched  by, 
or  is  within  the  control  and  power  of,  the  officer;*^  and  if  the  defen- 
dant then,  or  afterwards  escape,  without  the  consent  of  the  oflicei', 
his  own  or  any  other  dwelling  house  will  be  no  protection  against  a 
recaption,  but  the  officer  may  break  outer  doors,  after  demand  of 
admittance,  to  seize  his  body,  or  may  retake  him  on  fresh  pur- 
suit,(l  1)  in  any  township  or  county,  on  any  day  or  at  any  place,  or 
on  any  business  which  would  otherwise  operate  as  a  privilege  from 
arrest;  for  the  party  is  still  considered  in  custody,  and  it  will  not 
be  an  original  taking.*^ 

It  is  the  duty  of  the  constable,  to  take  the  defendant  forthwith 
before  the  justice  who  issued  the  capias. "^ 

If.  however,  it  be  necessary^  the  constable  may  confine  the  defen- 
dant in  a  house,  or  other  place  of  security,  or  place  him  in  a  jail, 
(with  the  leave  of  the  sheriff,)  for  safe  keeping,  a  reasonable  time, 
(as  for  an  hour  or  two  after  the  arrest,)  until  he  obtains  assistance; 
or  during  the  night,  if  the  arrest  is  so  late  that  he  cannot  get  to  the 
office  of  the  justice  before  sundown.  But  there  must  not  be  any 
unnecessary  delay  in  taking  the  defendant  by  the  most  direct 
rout,  and  in  the  most  convenient  time,  to  the  justice  who  issued 
the  writ.'^ 

If,  after  an  arrest  upon  a  capias,  the  officer  permit  the  prisoner  to 
go  at  large,  for  such  period  as  will  not  materially  delay  the  return 
of  the  capias,  (as  for  an  hour,)  and  the  prisoner  within  that  time 
return  into  the  custody  of  the  officer,  or  the  officer  retake  him,  (as 
he  may  do,)  within  a  reasonable  time,  he  will  not  be  liable  for  an 
escape.^  But  in  such  case,  the  officer  acts  at  his  peril:  for  if  he  vol- 
untarily permit  a  prisoner  to  go  at  large,  so  that  the  prisoner  is  not 

(1.)  16  Jobns.  Itep.  287.  (e)  Stal.  509,  $18. 

(c)lSalk.  79.     1  Wend.  Rep.  210.  (f)  Cowen's  Treatise,  280. 

(d)  2  Ld.  Raym.  1028.    2  Stark.  626.  5  Co.  93,     (g)  2  T.  R.  172,  126.    2  B.  and  Aid.  56. 
5th  Reso.  5  Jolins.  Rep.  182. 

(10)  Curtilage,  is  the  inclosed  yard  around  and  belonging  to  a  house. 

(11)  Fresh  pursuit,  means  pursuit  made  as  soon  as  the  officer  liad  notice  of  the 
escape.     lioll.  M.,  Title,  Escnpe,  E.  3. 


§6.]  OF    THE    CAPIAS.  •  37 

forthcoming  with  the  capias  at  the  time  it  is  returned  or  should  be 
returned,  he  will  be  liable  to  the  plaintiff  for  the  amount  of  the 
debt,  and  if  compelled  to  pay  it,  cannot  recover  back  the  money 
from  the  defendant;  being  guilty  of  a  breach  of  duty,  out  of  which 
he  can  derive  no  cause  of  action.** 

A  return  that  the  defendant  is  sick  and  cannot  be  removed  with- 
out danger  to  his  life,  and  continued  so  at  the  return  of  the  writ,'  or 
that  the  defendant  was  rescued  out  of  the  custody  of  the  officer,''  or 
that  the  defendant  overpowered  the  officer  and  rescued  himself,'  is 
a  good  return,  and  when  true  and  the  officer  has  been  guilty  of  no 
negligence,  will  excuse  him  from  all  liability. 

i3ut  if  there  is  any  negligence  or  want  of  exertion  on  the  part  of 
the  officer  to  retain  the  defendant  in  custody,  he  will  be  liable  for 
the  escape. 

FORMS    OF    RETURNS    TO    CAPIAS. 

I  have  taken  the  body  of  the  within  named  C D , 

1 8 — .         Fees cents. 


I J ,  Constable. 

Defendant  not  found.(12) 

I J ,  Constable. 

(h)  3  East,  171.  (I)  Com.  Dig.  Rescue  (D)  4!  1  B,  and  Aid.  190: 

(i)  6  Eng.  C.  L.  Rep.  425.  '  3  Eng.  C.  h.  Rop.  1*9;  and  see  Part.  1, 

(k)  Cro.  Jac.  419.     1  Stia.  432.  Cliap.  24,  ^2. 


(12)   Upon  tills  return  the  constable  Is  not  entitled  to  any  fees,   perhaps  not 
even  mileuge. 


CHAPTER  VI. 

OF  THE  RILL  OF  PARTICULARS  AND  CLAIMS  TO  BE  FILED 
ANITII  THE  JUSTICE. 

SECTION    r.        OF  THE  BILL  OF  PARTICULARS,  AND  HEREIN, 

(A)  IV/ien  the  parties  should  Jile  it^  and  the  evidence 

thereon. 

(B)  What  a  bill  of  particulars  should  contain.,  and 

the  effect  of  mistakes  or  omissions  therein. 

(C)  IIoic  to  proceed  when  either  jmrty  neglects  to  Jlle 

a  bill  of  particulars. 

l\.     OF  THE  CLAIMS  WHICH  MUST  BE  FILED  AVITH  THE  JUSTICE. 


Sec.    \. OF  THE  BILL  OF  PARTICULARS. 

{A)  At  what  time  the  parties  should  Jile  a  bill  of  particulars.,  and 
the  evidence  thereon. 

The  plaintiff',  his  agent,  oi*  attorney,  must,  in  all  cases,  file  a  bill 
of  the  particulars  of  his  demand,^  and  the  justice  should  always  be 
careful  to  note  on  his  docket  the  fact,  that  it  has  been  filed.  It 
should  regularly  be  filed  before  the  summons  or  capias  issues,  though 
the  justice  may  receive  and  file  ii  at  any  time  before  trial,  but  not 
afterwards. 

The  defendant,  if  required  by  the  plaintilf,  his  agent  or  attorney, 
and  not  otherwise,  must  file  a  like  bill  of  the  particulars  he  may 
claim  as  a  set  off.^  The  plaintiff  cannot  require  a  bill  of  the  defend- 
ant, after  the  cause  proceeds  to  trial ;  nor  can  the  defendant  file 
such  bill,  after  that  time. 

The  plaintifi'is  precluded  from  giving  evidence  upon  the  trial,  of 
any  claim  or  demand,  not  stated  in  his  bill ;  and  the  defendant  must 
also  be  confined  in  his  evidence  of  set  off,  to  the  items  mentioned 
in  his  bill.* 

If  the  defendant  has  any  other  defence,  except  a  set  off,  he  has 
a  right  to  show  it  on  the  trial,  without  mentioning  it  in  his  bill  of 
particulars;  as  the  statute  only  requires  him,  on  request,  to  file  the 
particulars  of  his  set  oft'. 

{B)  What  a  bill  of  particulars  must  contain.,  and  the  effect  of  mis- 
tahes  or  omissions  therein. 

The  bill  of  particulars,  filed  by  either  party,  should  contain  an 
account  of  the  items  of  demand,  and  state,  in  general,  when  and  in 
what  manner  they  arose.^ 

The  plaintift",  in  his  bill  of  particulars,  is  not  obliged  to  state  the 
credits  or  payments  made  by  the  defendant;  as  the  latter  must  know 

(a^  Btat.  510,  $24.  (b)  Tidd's  Prac.  C14,  7tli  cd.  J 


[PW.  1,  C/?,6,  §1,(A),(B)]    BILL  OF  PARTICULARS.  39" 

them  as  well  ag  the  plaintiil';  nor  need  he  state  the  amount  of  inter- 
est which  he  claims  on  his  demand.® 

The  bill  must  be  drawn  with  such  particularity,  as  to  inform  the 
opposite  party  of  the  foundation  of  the  transaction,  upon  which  the 
claim  arises;  and  it  will  be  sufficiently  certain  and  definite,  if  it  ap- 
prises the  party  for  whose  benefit  it  is  given,  of  the  evidence  which 
is  to  be  oflered,  so  that  there  can  be  no  mistake  as  to  the  preparation 
to  be  made  to  resist  the  claim. ^  Such  errors  in  the  date  or  amount 
of  an  item,  &c.  as  will  not  mislead  the  opposite  party,  will  not, 
therefore,  exclude  the  item  from  being  proved,  and  if  just,  allowed. 
As  where  the  plaintitl's  bill  contained,  ariiong  other  things,  the  fol- 
lowing items: 

To  cash  paid  Froggart  &  Co.         -         -         £80     13s  Gd 
To  diUo  paid  Hoftan  &  Co.        -         -         -        93       8     0 
To  ditto         -         ditto  -         -         -  80     1 3     6 

Evidence  being  given  of  the  first  sum  of  £80  135  6d  to  Froggart 
Sf  Co.^  the  plaintift'  was  proceeding  to  show,  that  a  second  sum  of 
£80  13.9  6^^  had  likewise  been  paid  to  Froggart  S^-  Co.^  by  the  plain- 
tift', at  the  defendant's  request;  when  it  was  objected  that  there  was 
no  mention  made,  in  the  bill  of  particulars,  of  more  than  one  sum 
being  paid  to  Froggart  4'  Co.^  and  that,  therefore,  the  plaintiff  could 
not  give  it  in  evidence.  The  plaintiff'  offered  to  show  that  this  was 
a  clerical  error,  as  the  above  item,  ^'To  ditto  paid  Hoftan  &  Co.," 
had  been  inserted,  by  mistake,  between  the  other  two  items,  and 
that  the  last  item,  "•  To  ditto  difto^'-  &c.  must  therefore,  have  been 
understood  to  refer  to  Froggart  &  Co.  Upon  this,  the  judge  over- 
ruled the  objection,  and  received  the  evidence  of  the  second  pay- 
ment, and  said,  that  if  the  defendant  could  show  by  affidavit,  that  he 
had  been  misled  by  the  plaintiff"'s  particular,  as  to  the  second  pay- 
ment to  Froggart  &  Co.,  the  court  would  reject  the  evidence,  as  to 
that  sum."^  So,  where  the  work  for  which  the  action  was  brought, 
was  stated  in  the  particulars,  to  have  been  done  in  the  wrong  month, 
the  plaintiff' was  permitted  to  give  evidence  of  the  work  having  been 
done  in  another  month.' 

These  cases  are  founded  upon  the  rule,  that  a  mistake  in  the 
statement  of  an  item,  or  demand,  is  of  no  consequence,  if  it  will  not 
mislead  or  take  the  opposite  party  by  surprise.  If,  however,  an 
item  due  the  party  filing  the  bill,  is  by  mistake  omitted,  he  cannot  be 
permitted  to  prove  the  item;  nor  can  it  be  allowed  to  him.  If  the 
plaintiff,  ignorant  of  the  nature  and  extent  of  his  demand,  has  given 
an  imperfect  particular  of  it,  he  shall,  nevertheless,  be  restricted  in 
his  own  evidence,  and  shall  not  l^e  allowed  directly  to  seek  to 
recover  any  thing  out  of,  or  beyond  the  contents  of  the  particular. 
But  if  the  defendant,  in  attempting  to  defeat  this  restricted  claim, 
give  him  a  better  case  thnn  he  was  at  liberty  to  make  for  him'self, 
he  is  entitled  to  a  judgment  for  all  that  is  proved  by  the  defendant 
to  be  due  to  him,  not  exceeding,  however,  the  original  amount 
claimed  by  the  plaintiff* 

Where  the  defendant  offers  evidence  of  a  claiiri  against  the  plain- 
tiff, the  latter  may  prove  a  payment  of  such  claim,  although  such 

Ce)  15  Jolins.  222;  Tiild'H  Prar.  (a)    5  Wciwl.  Fnp.  4!?.  (i)  2  Taunt.  224. 

uhi  sup.  4  E.ip.  147.  (Ii)    1  Crinp.  TO,  vote.  (k)   1  Camp.  6B. 


40  BILL  Ot'  PARTICULARS.    [Prt.  1   CIl.  6,  §1,(C),  2] 

payment  docs  not  appear  in  liis  bill  of  particulars;  for  it  was  not,  a 
proper  item  to  make  out  the  case  of  the  plaintitf,  in  the  first  instance, 
but  to  rebut  evidence  produced  by  the  defendant.' 

(C)  How  to  proceed  where  cither  party  neglects  to  Jile  a  hill  of  par- 
ticulars. 

If  the  plaintiff  neglect  to  file  his  bill  of  particulars,  before  the 
trial,  he  may,  upon  the  motion  of  the  defendant,  be  nonsuited.(l) 
We  have  already  seen™  that  the  defendant  is  not  bound  to  file  a 
particular,  except  when  requested  so  to  do,  by  the  plaintiff,  his  agent 
or  attorney;  and  that  such  particular,  need  only  contain  matters  of 
set  ofl'.  The  defendant  cannot  be  permitted,  upon  the  trial,  to  give 
evidence  of  any  set  off,  if  he  was  requested  by  the  plaintiff,  a  rea- 
sonable time  before  the  trial,  to  file  his  bill  of  particulars;  but  he 
will,  notwithstanding,  be  allowed  to  otherwise  contest  the  plaintiff's 
claim,  and  even  prove  its  payment.(2) 

Sec.  II, OF  THE   CLAIMS  WHICH    MUST    BE    FILED    WITH    THE    JUSTICE, 

AND  HIS  PROCEEDINGS  THEREON. 

When  the  bond,  sealed  bill,  promissory  note,  or  other  instrument 
of  writing,  upon  which  the  suit  is  brought,  is  for  the  payment  of  a 
sum  of  money  certain,(3)  and  the  whole  amount  is  due,  such  instru- 
ment ought  to  be  filed  with  the  justice  before  trial,  and  must  be  so 
filed  before  judgment  is  rendered;  and  if  judgment  is  entered  there- 
on, the  justice  must  retain  the  instrument,  and  indorse  upon  it  the 
amount  of  the  judgment,  and  subscribe  his  name  to  the  indorsement. 
Of  course,  no  suit  can  afterwards  be  brought  upon  the  instrument, 
against  the  same  defendant.  If  the  cause  is  appealed,  the  instru- 
ment must  be  delivered  or  transmitted  by  the  justice  to  the  clerk  of 
the  court,  on  or  before  the  first  day  of  the  next  succeeding  term." 
If  the  suit  is  not  appealed,  the  justice  must  retain  the  instrument, 
unless  there  is  some  indorser  or  assignor,  or  joint  obligor,  or  other 
person,  liable  to  an  action  upon  it,  besides  the  defendant;  in  which 
case,  the  justice  may,  at  any  time  after  the  indorsement  is  made  by 
him,  deliver  the  instrument  to  the  party  who  is  entitled  to  sue  upon 
it.°  If  the  plaintifi' neglect  or  refuse  to  file  the  instrument,  the  jus- 
tice should  render  a  judgment  of  nonsuit  against  him.  If  the  cause 
is  discontinued,  or  it",  upon  hearing,  the  justice  does  not  render  a 
judgment  for  or  against  the  defendant,  on  the  merits,  but  nonsuits 
the  plaintiff,  the  instrument  should  be  re-delivered  to  the  plaintiff,, 
without  any  indorsement;  as  in  such  case  he  would  have  a  right  to 
commence  a  new  action.  If  the  instrument  upon  which  suit  is 
brought,  be  not  for  the  payment  of  a  sum  of  money  certain,  or  if  it  be 
for  a  sum  of  money  certain,  Imt  the  whole  amount  not  due;  in  either 
case,  the  plaintiff  is  not  bound  to  file  the  instrument,  nor  would  the 
justice  have  any  right  to  retain  it  after  he  had  made  the  indorsement. 

(I)  2  Wend.  593.  (m)  See  page  38.  (n)  Stat.  530.  531. 

(1")  See  effect  and  form  of  this  judgrnent,  Part  1,  Chap.  16,  §2,  (A.) 

(2)  As  to  the  distinction  between  setoffand  payment,  see  Part  2,  Title  30,  §1. 

(3)  See  Part  2,  Title  31,  §2,  (F,)  and  (F),  for  the  law  in  relation  to  what  is,  and 
what  is  not,  an  inslrumenl  for  tlic  payment  of  a  sum  of  money  certain. 


CHAPTER  VII. 


OF  THE  PEOCEEDINGS   BEFORE  THE  TRIAL,  WHEN  A  SUIT 
IS  COMMENCED  BY  A  SUMMONS. 


SECTION  U  OF  KJVTERING  UPON  THE  COCKET  AND  AMENDING  THE  RETtTRJ^f 
TO  THE  SUMMONS,  AND  WHAT  DEFECTS  AND  ERRORS  IN  THE 
PREVIOUS  PROCEEDINGS  ARE  WAIVED  BY  THE  DEFENDANT'S 
APPEARANCE. 

II.  HOW  TO  PROCEED  WHEN  THE  PLAINTIFF  FAILS  TO  APPEAR. 

III.  HOW  TO  PROCEED  WHEN  THE    DEFENDANT    FAILS    TO    APPEAR, 

AND    HOW    AND    WHEN  A  JUDGMENT  AGAINST    HIM    MAY    BE 
SET  ASIDE,  AND  A  NEW  TRIAL  HAD. 

IV.  HOW  TO  PROCEED  WHEN  BOTH  PARTIES  FAIL  TO  APPEAR. 

V.  HOW  TO  PROCEED  WHEN  THE  JUSTICE  FAILS  TO  ATTEND. 

VI.  WHEN,  AND  FOR  WHAT  PERIOD,  THE  CAUSE  MAY  BE  ADJOURN- 

ED, AND  HEREIN 

(A)  For  the  benefit  of  an  absent  part^j. 

(B)  By  the  consent  of  both  parties^  o?-  at  the  request 
of  either^  with  the  form  of  an  affidavit  for  an 
adjourninent. 

VII.  OF  AN  IRREGULAR  ADJOURNMENT,  AND  ITS  EFFECT. 


Sec.   I. OF  ENTERING  UPON  THE  DOCKET  AND  AMENDING  THE  RETURN 

TO  THE  SUMMONS,  AND  AVHAT  DEFECTS  AND  ERRORS  IN  THE 
PREVIOUS  PROCEEDINGS  ARE  WAIVED  BY  THE  DEFENDANT'* 
APPEARANCE. 

The  summons  should  be  delivered  to  the  justice  at  or  before  the 
time  mentioned  in  it  for  the  appearance  of  the  defendant;  and  the 
justice  should  then  examine  the  return  of  the  constable,  and  see 
that  it  is  properly  made. 

The  constable  may  correct  his  return  according  to  the  truth; 
being  at  the  same  time  liable  to  an  action,  if  it  be  false. 

The  justice  should  note  on  his  docket  the  time  "when  the  sum- 
mons was  returned,  and  also  at  the  same  time  copy  thereon  the 
return  itself  (1) 

(1)  For  the  form  of"  the  entiv  on  the  docket  in  such  cases,  see  Part  1,  Chapter 
18,  §2. 

6 


42  APPEARANCE  AND  ADJOURNMENTS.  [Prt.  1,  C/t.  7, 

It  will  be  proper  to  state  here,  what  credence  is  given  to  the 
return  of  an  officer, 

A  witness  brought  up  on  an  attachment  may  show  that  the  re- 
turn to  the  subpania  issued  for  him  is  false;  but  the  parties  to  the 
action  in  \\hich  the  subpoena  issued,  cannot,  in  that  action  deny 
tlie  truth  of  the  return.  So,  when  the  return  to  any  other  writ  is 
false,  either  the  plaintifl'or  defendant  to  the  suit  in  which  the  writ 
issued,  may,  in  an  action  against  the  officer,  show  t!uit  his  return  is 
false;  but  in  the  progress  of  the  cause  in  which  the  writ  issued, 
neither  the  pl;iintit}"nor  the  defendant  will  be  permitted  to  deny  the 
truth  of  the  return;*  though  they  may,  under  certain  circumstances, 
as  wc  shall  hereafter  see,(2)  take  advantage  of  defects  therein. 
When,  therefore,  it  appears  from  the  return  of  a  summons,  that  it 
was  duly  served  upon  the  defendant,  he  should  not  be  permitted  to 
prove  that  it  was  not,  in  fact,  duly  served:  his  remedy  is  against  the 
constable  for  a  false  return. 

A  defendant,  by  appearing  to  the  action  against  him,  waves  cer- 
tain defects  and  irregularities  in  the  previous  proceedings.  It  will 
therefore  be  proper  to  ascertain  what  is  an  appearance,  before  in- 
quiring into  its  etfect. 

The  mere  presence  of  a  defendant  at  the  time  and  ])lace  men- 
tioned in  the  summons  for  the  trial,  if  he  say  or  do  nothing  in  the 
suit,  will  not  be  an  appearance.     A  motion  made  by  him  before  trial 
for  a  nonsuit,  on  account  of  a  mistake  in  his  name,  or  other  defect  in . 
the  summons  or  its  return,  is  not  a  technical  appearance. 

But  if  a  defendant  attend  at  the  time  mentioned  in  the  summons 
for  his  a])pearance,  and  say  that  he  is  ready  for  trial,  or  make  no 
objection  against  the  plaintiff's  proceeding  to  prove  his  cause  of  ac- 
tion, the  appearance  of  the  defendant  is  complete  the  moment  the 
justice  commences  the  trial  of  the  cause.  So,  when  no  such  motion 
as  that  just  mentioned,  is  made  by  the  defendant,  but  he  attends 
before  the  justice,  and  the  cause  is  adjourned  for  trial  on  the  merits, 
at  his  request,  or  by  consent  of  both  parties,  or  on  the  application 
of  the  plaintiff;  the  a])pearance  of  the  defendant  i^<iomplete  by  his 
requesting,  or  consenting,  or  objecting  to  such  adjournment.(3) 

When  the  return  to  a  summons  is  such,  that  it  does  not  appear 
therefrom  that  the  writ  was  duly  served,  and  the  defendant  fails  to 
appear,  the  justice  must  render  judgment  for  costs  against  the  plain- 

(a)  4  Mass.  Kep.  478 ;  9  Id,  96 ;  10  Id,  313 ;  Harri.  Dig.  1981,  Am.  Ed. 

(2)  See  pag-e  43. 

(3)  It  is  difficult  to  lay  down  any  very  satisfactory  r(des  in  relation  to  such  an 
appearance  be  lore  mag-istrates  as  will  cure  misnomers  and  defects  in  process. 
When  parlies  appear  and  the  suit  is  continued,  in  contemplation  of  law  and  com- 
mon sense,  the  issue  is  made  up  on  the  merits  at  the  time  the  cause  is  adjourned; 
foi'  the  parties  from  that  time  have  a  right  to  proceed  in  taking'  de-positions  and 
subpoenaing-  witnesses,  in  like  manner,  as  parties  in  a  court  of  record,  after  the 
issue  is  made  up.  For  tlie  defendant  to  wait  (in  a  case  where  he  was  present  at 
an  adjournment)  until  the  adjourned  day  of  trial,  to  make  objections  to  the  mode 
in  wlilcli  he  was  brought  into  court,  would  be  oppressively  expensive  to  a  plain- 
tiff, and  would  serve  no  other  purpose  than  to  gratify  the  bad  feeling-s  of  the  de- 
fendant. 


§1.]  APPEARANCE    AND    ADJOURNMENTS.  43 

tiff,  as  in  case  of  nonsuit..(4)  If  the  justice  should  render  judgment 
and  issue  execution  against  the  defendant  under  such  circumstances, 
he  might  render  himself  liahle  to  the  action  of  the  defendant  for 
damages,  in  the  court  of  common  pleas.  When,  however,  the  re- 
turn to  the  summons  is  thus  defective,  if  the  defendant  make  no 
objection  on  account  thereof,  until  after  his  appearance  is  complete 
in  the  mode  above  mentioned,  he  has  already  done  precisely  what 
the  due  service  of  a  legal  summons  is  intended  to  effect;  and  it  is 
of  no  consequence  how,  or  where,  or  Mdien,  the  summons  was 
served:  it  is  too  late  for  him  to  object  on  account  of  tlie  defect  or 
mode  of  service.  So,  the  appearance  of  the  defendant  in  the  man- 
ner above  mentioned, (5)  cures  n,ll  errors  and  defects  in  the  summons 
which  he  might  have  taken  advantage  of,  if  he  had  made  his  objection 
before  such  appearance. 

The  appearance  of  the  defendant  sometimes  also  cures  mistakes 
made  in  the  name  by  which  he  is  sued. 

Misnomer  means  a  mistake  of  the  true  name  of  a  person.  The 
difference  between  making  a  mistake  in  the  name  of  a  party  to  a 
suit,  (as  suing  John  Smith  by  the  name  of  Joshua  Smith,)  and  mak- 
ing a  mistake  in  the  party  to  a  suit,  (as  suing  you  when  I  should 
have  been  sued,)  is  obvious.  The  law  in  relation  to  mistakes  in 
making  parties  to  actions,  has  already  been  noticed.(6) 

Slight  or  trivial  mistakes  in  the  names  of  parties  cannot  be  made 
the  ground  of  objection.  A  mere  mistake  in  spelling  the  name  of 
the  plaintiff  or  defendant  is  of  no  consequence,  when  his  real  name 
and  the  one  in  which  he  sues,  or  is  sued,  sound  alike.  So,  an  ini- 
tial letter  between  the  christian  and  surname,  (as  the  letter  W,  in 
the  name  of  Jolin  W.  S?7iith.)  is  no  part  of  the  name.''  The  law 
knows  of  but  one  christian  name.  If  a  person  be  known  as  well 
by  one  name  as  another,  he  may  sue,  or  be  sued,  by  cidier  name. 
So,  if  a  person  enter  into  a  contra,ct,  not  under  seal,  and  give  him- 
self a  wrong  name,  he.  mai/  be  sued  by  such  name.*^  If  a  person 
enter  into  a  bond  or  other  contract,  under  seal,  and  make  a  mis- 
take in  his  sigaxiture,  he  ?nust  be  sued  by  such  wrong  name;  and 
therefore  cannot  object,  on  account  of  the  mistake,  before  or  at 
the  trial.*^  When  a  mistake  is  made  in  the  name  of  the  person  to 
whom  an  instrument,  under  seal,  or  without  seal,  is  executed  or 
payable,  the  plaintiff  may  sue  in  his  right  name,  and  show  the  mis- 
take on  the  trial.® 

If  a  defendant  be  sued  by  a  wrong  christian  name,  in  other  cases 
than  those  just  mentioned,  and  fail  to  attend  on  the  aj)pearance 
day,  the  safest  course  for  the  plaintiff  is  to  suffer  a  nonsuit  and 
bring  a  new  action.  If  a  defendant  be  sued  by  a  wrong  christian 
name,  and  make  the  objection  before  his  appearance  is  complete  as 

(b)  5  Johns.  Rep.  84.  (d)  3  Taunt.  504. 

(c)  6  Taunt.  530.  (c)  See  page  17. 

(4)  As  to  the  form  and  effect  of  a  judgment  of  nonsuit,  see  Part  1,  Chap.  16, 
§2,  [A]. 

(5)  Sec  the  preceding-  page. 
(G)   Sec  pages  19  and  23. 


44  APPEARANCE    AND    APJOURNMENTS.  [Prt.   1,  C/l.  7, 

heretofore  mentioned,(7)  the  mistake  may  be  corrected  by  inserting 
the  true  name  in  the  summons, (8)  if  the  true  name  appear  in  the 
bill  of  particulars  or  in  the  entry  of  the  suit  on  the  docket:  the 
cause  may  then  be  proceeded  in,  as  if  the  error  had  not  existed. 
But  if  the  mistake  also  appear  on  the  docket  and  in  the  bill  of  par- 
ticulars, there  will  then  be  nothing  to  amend  by,  and  judgment  for 
costs,  as  in  case  of  nonsuit,  should  be  entered  against  the  plaintiff! 
When,  however,  a  defendant  appears  in  a  cause,  in  the  manner 
heretofore  mentioned,(9)  he  cannot  afterwards  set  up  the  mistake 
as  a  defence, s  and  in  such  case  the  justice  should  make  a  memo- 
randum on  his  docket  showing  the  mistake  and  the  appearance  of 
the  defendant.pO) 

If  a  plaintifl^  sue  by  a  wrong  christian  or  surname,  it  is  doubtful 
wdiether  he  could  proceed,  even  if  the  defendant  omitted  to  make 
the  objection  until  the  trial.''  The  safest  course  in  s\ich  case  is  to 
enter  judgment  for  costs  against  the  plaintiff,  as  in  case  of  a  non- 
suit.(n) 


Sec.  II. — -HOW  to  proceed  when  the  plaintiff  fails  to  appear. 

When  the  plaintilT,  by  himself  or  agent,  fails  to  appear  on  the 
day  required  by  the  summons,  the  justice  may,  at  his  discretion, 
either  try  the  cause  or  continue  it,  or  render  judgment  of  nonsuit 
against  the  plainti{r,'(12) 

(p)  3  0Iiio  Rep.  272;  1  Bos.  ntid  Pul.  344;  1  R.  nnfl  P.  647,  do  not  benr  liim  out.     The 

VVrislu's  Rep.  290,  762  ;  3  T.  R.  611.  .1  Anstr.  934,  cited  l.y  iiim,i9  not  before  me. 

(h)  7  Coiv.  i(ep.  37  ;  Ti.ld's  402.     Tlie  cases  (i)  Stat.  510,  $2.5. 
cited  liy  Cljitt y,  from  6  M.  and  S.  45,  and 

(7)  See  page  42. 

(8)  Peilnips  tliis  is  unnecessary,  as  the  summons  can  form  no  part  of  the  docket 
entry.      Wright's  Rep.  70.  418.  " 

(9)  See  pHge  43. 

(10)  The  entrv  on  the  docket  may  be  in  the  form  following': 

Jane  — ,    18 — ■',  —  o'clock,  .     C H ,  \here  inserting  ihe  true  name 

of  the  defendant,]  ag'uinst  wliom  the  bill  of  particulars   was  fikd  herein,  and  who 

was  served  with  the  summons  and  sued  herein  by  the  name  of  ¥.— 1) , 

{here  inserting  ihe  wrong  name  as  it  urns  loritten  in  ihe  summons,']  appeared 
thereto. 

Further  proceedln.c:s  are  had  in  the  can.=;e,  as  in  other  cases. 

I  do  not  perceive  !iow  tlie  defendant,  either  on  appeal  or  certiorari,  could  take 
advantage  of  a  misnomer  in  the  summons  wlicre  no  misnomer  appears  on  the 
docket,  as  tlie  sumrnons  forms  no  part  of  a  docket  entry,  and  need  not  be  copied 
into  it.  Wrighfs  Rep.  290.  A  defendant,  by  filing- a  transcript  on  appeal,  places 
liimself  in  tiie  Court  of  Common  Pleas  precisely  in  the  situation  of  a  person  who 
Ijas  been  sued  there,  and  duly  served  witli  a  summons;  and  the  plaintid",  by  de- 
claring against  him  in  tlie  usual  manner  when  there  is  a  misnomer,  would  prevent 
any  advantage  being  taken  of  the  mistake  before  the  justice.  Set  1  Chit.  Fl.  281, 
GthAm.ed'      JFright's  Rrp.  762. 

(11)  As  to  the  i'orm  and  effect  of  a  judgment  of  nonsuit,  see  Part  1,  Chap.  16, 
^2,  [.\].  Execution  may  issue  in  tiie  name  wliicli  appears  on  the  docket,  and  the 
plaintitf  will  not  be  permitted  to  deny  but  that  he  was  the  plaintiH'.  If  the  mis- 
take was  made  by  the  justice,  he  ought  not  to  exact  costs. 

(12)  For  the  form  and  effect  of  a  judgment  of  nonsuit,  see  Part  1,  Cltapter  16, 
^2,  [A]. 


§2,  3,  4.]  APPEARANCE  AND  ADJOURNMENTS.  45 

When  there  is  no  defence  to  an  action,  or  the  evidence  of  tho 
plaintiff's  claim  is  filed  with  the  Justice,  and  requires  no  proof  but 
its  production,  (such  as  a  note,  bond,  or  the  like,)  or  the  witnesses 
of  the  plaintiff  are  present,  it  would  be  proper  to  proceed  with  the 
trial,  in  the  absence  of  the  plaintiff.  The  defendant  has  no  right  to 
claim  an  adjournment  merely  because  the  plaintiff  is  not  present. 


Sec.    III. HOW  TO  PROCEED  WHEN  THE  DEFENDANT  FAILS  TO  APPEAR, 

AND    HOW  AND  WHEN  A  JUDGMENT  AGAINST  HIM    MAT  BE 
SET  ASIDE,  AND  A  NEAV  TRIAL  GRANTED. 

A  defendant  is  generally  allowed  an  hour  after  the  time  fixed  for 
the  trial,  to  appear.  After  waiting  a  reasonable  time  for  the  de- 
fendant or  his  agent  to  appear,  no  good  cause  being  shown  for  his 
absence,  the  trial  may  proceed  as  if  he  were  present,  unless  the 
plaintiff  request  a  continuance.'' 

When  a  cause  is  tried  in  the  absence  of  the  defendant,  the  justice 
may,  and  in  many  cases  should,  require  the  plaintiff  to  produce  the 
same  proof  as  if  the  defendant  v.'ere  present,  denying  the  claim  of 
the  plaintiff.'' 

A  defendant  may  have  a  judgment  rendered  against  him  in  his 
absence,  set  aside,  upon  application  to  the  justice,  itbr  that  purpose, 
within  ten  days  after  its  rendition,  and  upon  the  payment  of  the 
costs.'  When  this  is  done,  the  justice  appoints  a  day  for  a  new 
trial;(13)  and  at  least  six  days  before  the  day  so  appointed,  the  de- 
fendant must  give  the  plaintiff  notice  of  the  time  fixed  therefor.' 
When  the  plaintiff  fails  to  appear  on  the  day  of  trial,  and  the  de- 
fendant has  given  him  the  requisite  notice,  the  justice  should  pro- 
ceed as  heretofore  directed  in  other  cases  when  the  plaintifi' fails  to 
attend. (14)  When  the  plaintiff  has  not  waved  the  notice,  and  the 
defendant  does  not  satisfy  the  justice  that  the  notice  has  been 
given,  judgment  should  be  rendered  on  the  day  fixed  for  the  trial, 
(without  hearing  any  testimony,)  for  the  amount  of  the  original  judg- 
ment and  for  the  costs^Riade  after  the  judgment  was  set  aside.  But 
if- the  notice  has  been  waved  or  given,  and  the  defendant,  or  both 
parties  fail  to  appear,  the  justice  may  proceed  in  the  mode  in  this 
section  and  hereafter  directed  in  other  cases  where  a  defendant,  or 
both  parties,  f;iil  to  attend  on  the  day  of  trial. 


Sec.  IV.  —  HOW  TO  proc'P'.kd  when  both  parties  fail  to  appear. 

If  neither  party  appear,  by  himself  or  agent,  the  justice  may,  at 
Ijis  discretion,  either  continue  the  cause,  enter  a  judgment  of  non- 

(k)  Stat.  510,  $27|   2  Cnine,  9G.  (1)1(1.511,528. 


(13)  See  tlie  form  of  the  entry  on  the  docket,  in  such  cases,  P.irt  1,  Chap.  24, 
^2,  [A.] 

(14)  See  the  preceding'  section. 


46  APPEARANCE  AND  APJOURNMENTS.      [l^rt.   1,  CJt.   7, 

suit  against  the  ]ilaintit]".(15)  or  it'  the  witnesses  or  otlier  ev^idence, 
such  as  a  note,  hond,  or  bill  ot"  exchange  ujion  Avhi(;h  the  suit  is 
brought,  be  before  the  justice,  he  nuiy  proceed  to  hear  and  deter- 
)nine  the  cause  on  its  merits." 

When  judgment  is  rendered  against  a  dclendant  in  his  absence, 
he  can  have  it  set  aside  by  proceeding  in  the  manner  directed  in 
the  preceding  section  of  this  chapter. 

Sec.  V.  —  now  to  phocekd  ^^]IEN  the  justice  eah.s  to  attend. 

When  there  is  an  unreasonable  "delay  by  the  justice  in  proceed- 
ing to  hear  a  cause  on  the  return  day  of  the  process,  or  at  the  time 
fixed  for  trial,  he  cannot  afterwards  proceed;  but  the  ])arties  are  out 
of  court;  and  the  suit  must  be  considered  as  broken  off  or  discon- 
tinued.    The  plaintiff' must  sue  again. 

A  suit  was  adjourned  until  10  o'clock  in  the  forenoon,  and  the 
defendant  appeared  at  the  time  and  waited  near  tiu'ee  hovu's.  The 
justice  not  attending,  the  defendant  then  went  away.  The  justice 
came  soon  after  and  heard  the  cau.<^  in  the  absence  of  the  defend- 
ant. It  was  decided,  that  by  the  delay  of  the  justice  in  attending", 
he  had  no  right  altervvards  to  proceed  in  the  suit." 

When,  howev^er,  there  is  such  unreasonable  delay  of  more  than 
three  hours,  and  the  parties  are  present  when  the  justice  arrives, 
neither  of  them  can  claim  that  they  are  out  of  court.  So,  if  such 
delay  arise  in  consequence  of  the  justice  being  engaged  in  the  trial 
of  another  suit,  this  will  not  cause  a  discontinuance.P 

Sec.   VI.  —  WHEN  and  eor  what  perio;)  a  suit  mat  p.e  awourneo, 

AND  herein, 

{A)  For  the  benefit  of  an  absent  j^arlij. 

When  a  summons  has  been  served  by  a  copy  left  at  the  dwell- 
ing house,  or  place  of  abode,  of  the  defendant,  during  his  absence, 
the  cause  may  be  adjourned  from  time  to  time,  even  for  a  longer 
period  than  ninety  days,  and  until  the  defendant  siiall  have  returned 
and  received  notice  of  the  commencement  of  the  suit:  but  such  ad- 
journment rests  on  the  sound  discretion  of  the  justice,  taking  into 
view  all  the  circumstances  of  the  case.^ 

When  the  summons  has  been  served  upon  the  defendant,  by 
reading  or  by  copy,  and  he  fails  to  appear,  but  a  sufficient  cause  is 
shown  for  his  non-attendance,  and  the  justice  is  satisfied  that  he 
ought  to  have  an  opportunity  to  defend  the  suit,  a  continuance  may 
be  granted  for  a  reasonal)!e  time,  not  exceeding,  however,  twenty 
days.''  So,  as  has  already  been  stated,  when  the  plaintiff"  does  not 
appear  by  himself  or  agent,  or  both  the  parties  fail  to  appear,  the 

(n)  Stat.  510,  $25  and  27.  (p)  10  Wenfl.  Rep.  102.  (r)  Slat.  510,  $23  and  27. 

(o)   15  Jolins.  Rep.  353.  (tj)  Stat.  509,  $17. 

(15)  For  the  form  and  cttect  of  such  a  judgment,  see  Part  1,  Chap.  16, 
§2,  [A.] 


§5,  6,  (A),  (B).]    APPEARANCE  AND  ADJOURNMENTS,  47 

justice  may  try  the  cause  or  continue  it,  or  render  judgment  of  non- 
suit against  the  plaintiff  for  the  costs,  at  his  discretion.'  In  such 
case  the  cause  should  not  be  continued  for  a  longer  period  than 
twenty  days. 

(B)  JVhen  and  for  wit  at  period  a  cause  may  he  adjourned  at  the 
request  of  the  plaintiff  or  defendant^  or  In/  consent  of  hoth^ 
with  the  form  of  an  affidavit  for  an  adjournment. 

A  cause  may  be  continued  for  any  period  by  the  consent  of  both 
parties;  but  if  one  party  ask  a  continuance,  and  the  other  object, 
it  should  not  be  granted  for  a  longer  period  than  twenty  days  from 
the  day  the  defendant  w^as  bound  by  the  summons  to  appear; -un- 
less either  the  party  asking  the  adjournment,  or  a  material  witness 
for  him,  reside  or  be  absent  in  another  State  or  county;  in  which 
case  the  justice  on  good  cause  shown  by  affidavit  and  on  the  pay- 
ment of  the  costs  of  the  adjournment(16)  by  the  party  asking  it, 
may  continue  over  the  cause  for  any  time  not  exceeding  ninety 
days  from  the  day  the  defendant  was  bound  by  the  summons  to  ap- 
pear.' 

There  may  be  adjournments  of  a  cause  for  one  or  more  days,  or 
from  time  to  time,  until  the  twenty  days,  or  the  ninety  days,  (as  the 
case  may  be,)  from  the  time  mentioned  in  the  summons  for  the  ap- 
pearance of  the  defendant,  shall  have  fully  expired. 

FORM  OF  AN  AFFIDAVIT  FOR  AN  ADJOURNMENT. 

A B- — , 

vs. 
C D . 


The  said  C D makes  oath  that  one  E F is  a 

material  witness  for  him,  as  he  verily  believes,  and  without  whose 
testimony  he  cannot  safely  proceed  to  trial  in  this  cause;    That 

the  said  E F resides  in  the  county  of :  [stating  the 

reason  why  the  attendance  of  the  witness  cannot  be  procured.,  and  then 
add,]  that  the  affiant  hopes  and  expects  to  procure  the  attendance 

[or  the  deposition]  of  said  witness  by  the day  of ,  and  that 

this  affidavit  is  not  made  for  delay,  merely,  but  for  the  purposes  of 
justice. 


[Sig7ied'\ 


C D- 


Subscribed  and  sworn  to,  this day  of ,  A.  I).  1 8 — 

G H ,  J.  p. 

(s)  Stat.  510,  $25  and  27.  (t)  Id.  ib.  $23. 


(IG)  'I'hc  costs  of  an  adjournment  are,  in  }:;-encral,  the  fees  for  issninc;- and  serv- 
ing the  subpccna,  tiie  fees  of  the  witnesses  in  attendance,  and  tiie  fees  of  the  justice 
for  entering-  tlic  adjournment. 


48  APPEARANCE  AND  ADJOURNMENTS.   [P/-/.  1,  Ch.  7,  §7,] 

Sec.    VII.  —  ov   an    ikkegulah   adjournment    and   the    ekkect 

THEREOF. 

If  a  cause  be  adjourned  for  a  longer  period  than  the  hiw  allows, 
the  subsequent  proceedings  of  the  justice  \vill  be  erroneous.''  But, 
in  such  case,  if  the  parties  afterwards  appear  and  go  to  trial,  it  will 
be  a  waver  of  an}^  objection  to  the  irregular  adjournment. "^ 

(v)  2  Johns.  Rep.  192.  (w)  9  Johns.  Rep.  136;  7  Johns.  Rep.  381. 


CHAPTER  VIII. 


OF  THE  APPEARANCE  AND  ADJ0URNI\1ENT,  WHEN  SUIT  IS 
COMMENCED  BY  CAPIAS. 

SECTION    I.        HOAV  TO  PROCEED  WHEN  THE  PLAINTIFF  FAILS  TO  APPEAR. 

II.  FOR  WHAT  PERIOD  AN  ADJOURNMENT  MAT  BE  ALLOWED. 

III.  HOW    TO    PROCEED    WHEN    ONE  OR  BOTH  PARTIES  FAIL  TO  AP- 

PEAR ON   THE   ADJOURNED  DAT  OF  TRIAL. 

IV.  FORM  OF  A  RECOGNIZANCE  FOR  THE  APPEARANCE  OF  A  DEFEN- 

DANT. 

V.  FORM  OF  A  MITTIMUS. 

VI.  FORM    OF  A  PRECEPT    TO  A  CONSTABLE    TO    RECEIVE    THE    DE- 

FENDANT FROM  THE  JAILOR. 


Sec.  I.  —  HOW  to  proceed  when  the  plaintiff  fails  to  appear. 

The  plaintiff^  is  not,  generally,  present  at  the  time  the  defendant 
is  brought  before  the  justice.  In  such  case,  if  the  defendant  de- 
mands an  immediate  trial,  the  justice  may  try  the  cause  or  adjourn 
it  over,  or  render  judgment  of  nonsuit  for  the  costs  against  the 
plaintift>  If  the  cause  is  adjourned  over,  on  account  of  the  ab- 
sence of  the  plaintifl',  and  the  defendant  refuses  to  give  bail  for  his 
appearance,  the  justice  may  direct  the  constable  to  hold  the  defen- 
dant in  custody,  until  the  plaintift"  can  have  notice  and  time  to  at- 
tend and  proceed  to  trial.'' 

It  is  not  the  duty  of  the  justice  to  give  the  plaintifl'  notice;  but 
he  may  send  a  constable  with  a  written  notice,  who  would,  no  doubt, 
be  entitled  to  mileage  fees,  for  serving  it.*^ 

Sec  II.  —  for  what  period  an  adjournment  mat  be  allowed. 

The  statute  provides''  that  the  constable,  according  to  the  com- 
mand of  the  capias,  shall  forthwith  convey  the  defendant  before 
the  justice  who  issued  the  writ;  "and  the  justice  shall  thereupon 
proceed  to  the  trial  of  the  cause,  or  on  application  continue  the 
same;  and  in  case  of  a  continuance  being  granted,  the  justice  shall 
require  the  defendant  to  give  bail(l)  for  his  appearance  before  such 

(a)  Stat.  509,  $19  and  20.  (r)  Id.  399.  $24. 

(b)  Id.  ib.  $20.  (d)  Id.  509,  $18,  19  and  20. 


(1)  See  the  fourtli  section  of  this  chapter,  for  the  form  of  a  recognizance  of 
bail. 

7 


60  APPEARANCK    AND    ADJOURNMENTS.  [P/7.  1 ,  C//.  8, 

justice  on  the  day  appointed  for  the  trial  of  the  cause,  and  for  his 
not  departing  the  court  without  leave.  If  the  defendant  shall  fail 
or  neglect  to  give  such  bail,  the  justice  shall  coinaiit  him  to  the  jail 
of  the  county,  there  to  remain  until  the  time  appointed  for  the 
trial,(2)  which  shall  not  exceed  three  days  from  the  return  of  such 
capias;  or  the  justice  may  order  the  constable  to  hold  such  defen- 
dant in  custody,  until  the  plaintilT  shall  have  notice  and  time  to  at- 
tend and  proceed  to  trial." 

Is  it  intended,  by  this  statute,  to  prohibit  an  adjournment  for 
more  than  three  days,  where  a  defendant  asks  and  shows  good  cause 
for  a  continuance,  and  is  ready  to  enter  into  a  recognizance?  1 
am  inclined  to  believe  that  in  such  a  case,  the  cause  could  be  con- 
tinued over  the  same  length  of  time,  that  the  statute  allows  where 
a  summons  is  the  first  process.(3)  And  so,  it  is  believed,  a  cause 
could  in  like  manner  be  continued,  if  the  plaintitf  asks  and  shows 
good  cause  for  a  continuance,  and  the  defendant  consents  to  enter 
into  a  recognizance.  But  when  the  defendant  neglects  or  refuses 
to  give  bail  for  his  appearance,  and  is  committed  to  jail,  the  cause 
must  be  tried  three  days  from  the  return  of  the  capias.  If  the 
defendant  has  entered  into  a  recognizance  for  his  appearance,  and 
is  unprepared  for  trial  on  the  day  required  by  his  recognizance  for 
his  appearance,  and  the  justice  grants  a  further  continuance,  a  new 
recognizance  must  be  entered  into  by  the  defendant.  In  cases 
where  the  defendant  has  entered  into  a  recognizance,  a  further 
continuance  cannot  be  granted  for  a  longer  period  than  is  allowed 
where  the  suit  is  commenced  by  a  summons. 


Sec.  III.  —  HOW  to  proceed  when  one  or  both  parties  fail  to  ap- 
pear ON  THE  ADJOURNED  DAY  OF  TRIAL. 

When  the  adjourned  day  of  trial  is  fixed  at  the  utmost  limit  o^ 
time  to  which  the  cause  can  be  adjourned,  under  the  rules  men- 
tioned in  the  preceding  section,  and  the  plaintiff  foils  to  appear, 
the  justice  must  either  try  the  cause,  or  enter  judgment  of  nonsuit 
against  the  plaintiff.  If  the  witnesses  or  proofs  of  the  plamtift"  are 
present,  the  justice  should  proceed  to  the  trial,  otherwise  he  ought 
to  nonsuit  the  plaintift'. 

Where  the  cause  has  not  been  adjourned  to  such  time  as  pre- 
vents a  further  adjournment,  the  justice  may,  in  case  the  plaintiff 
fails  to  appear,  again  adjourn  the  cause,  or  try  it,  or  render  a  judg- 
ment of  nonsuit  against  the  plaintiff.^  If  the  cau^e  is  again  ad- 
journed, a  new  recognizance  should  be  taken  for  the  appearance 

(e)  Stat.  510,  $25. 


(2)  Question,  llow  shall  the  defendant,  after  he  is  committed  to  jail,  be  broii.s^ht 
aealn  before  the  justice?  A  precept,  it  is  believed,  coidd  be  issued  to  a  constable, 
to  receive  the  defendant  from  the  jailor,  and  a  form  is  therefore  given  at  the  end 
of  this  chapter. 

(3)  See  the  law  as  to  continuances  where  the  suit  is  commenced  by  summons, 
page  47. 


§3,  4.]  APPEARANCE  AND  ADJOURNMENTS,  51 

of  the  defendant;  and  if  the  defendant  neglects  or  refuses  to 
enter  into  a  recognizance,  or  if  he  enters  into  it,  the  justice  must 
in  either  case  be  careful  not  to  fix  a  period  for  the  trial,  beyond 
that  which  has  been  mentioned  in  the  preceding  section  of  this 
chapter. 

If  the  defendant,  in  the  absence  of  the  plaintiff,  asks  for  a  con- 
tinuance, the  justice  may  still  exercise  his  discretion,  and  try  the 
cause  if  he  thinks  it  right  so  to  do. 

If  the  defendant  fails  to  attend  on  the  adjourned  day  of  trial,  the 
fact  of  his  non-attendance  should  be  noted  on  the  docket.  The 
justice  may  then  proceed  in  the  absence  of  the  defendant  to  hear 
and  determine  the  cause.  A  cause  cannot  be  heard  and  determined 
without  evidence,  and  consequently  if  there  be  no  proof  by  wit- 
nesses or  othei'wise,  of  the  claim  of  the  plaintiff",  the  cause  must  be 
either  adjourned  over,  or  judgment  of  nonsuit  entered  against  the 
plaintiff  for  costs. ^  If,  howevei*,  a  sufficient  reason  be  assigned  for 
the  non-attendance  of  the  defendant,  the  justice  may  adjourn  the 
cause  in  like  manner,  and  for  a  like  period,  as  where  suit  is  com- 
menced by  a  summons  which  has  been  served. (4) 

If  both  parties  fail  to  attend  at  the  time  fixed  by  the  adjournment 
for  the  trial,  the  justice  may  hear  and  determine  the  cause;  adjourn 
it  over;  or  render  judgment  of  nonsuit  against  the  plaintifl'. 


Sec,  IV. FORM  OF  A  RECOGNIZANCE    FOR    THE    APPEARANCE    OF    THE 

DEFENDANT,    WHEN    ARRESTED    ON   A  CAPIAS,^  AND    THE 
PROCEEDINGS  THEREON. 

The  State  of  Ohio, county,  ss. 

Whereas,  C D has  been  arrested,  and  is  now  in  cus- 
tody, at  the  suit  of  A B — ■ — ,  in  an  action  [here  state  the  kind 

of  action  as  7iajned  iii  the  capias.']  Now,  therefore,  be  it  remember- 
ed, that  on  this day  of ,  in  the  year  of  our  Lord,  one  thou- 
sand eight  hundred  and ,  personally  came  before  me,  G 

H ,  a  justice  of  the  peace,  in  and  for  the  township  of ,  in 

the  county  aforesaid,  E F ,  and  acknowledged  himself  to 

owe  [or  if  Utere  he  more  than  one  surety.,  say.,  and  jointly  and  seve- 
rally acknowledged  themselves  to  owe]  unto  the  said  A B , 

the  sum  of  [//ere  insert  dotdAe  the  amount  indorsed  on  the  u-rit']  to  be 
levied  of  his,  [her  or  their]  goods  and  ciiattels,  lands,  and  tenements, 
in  case  default  be  made  in  the  condition  following,  which  is:  That 

the  said  C D shall  be  and  appear  before  me,  at  my  ol^ce, 

in  the  township  aforesaid,  on  the day  of— ,  at  —  o'clock, 

A.  M.  [or  P,  M,  stating  the  lime  to  which  the  cause  is  adjourned  for 

(g)  Stat.  509,  $21 ;  2  Caine'sRep.  96.  (h)  Stat  527. 


(4)   As  to  tlie  timo  nllowed  wlien  snit  is  rommenrcd  by  summons,  see  page  47. 


52  APPEARANCE    AND    ADJOURNMENTS.  Prt.  1,  Clt.  8, 

trials]  in  the  j-ear  of  our  Lord,  one  thousand  eioht  hundred  and . 

to  answer  to  the  action  aforesaid,  and  not  depart  without  leave. 

[S/iimul]         E F . 

Taken,  signed  and  acknowledged,  on  the  day  and  year  aforesaid, 
before  me. 

C II ,  .1.  p. 

The  ol)jcct  of  this  recognizance  is  that  the  defendant  nray  be 
forthcoming,  wlien  nn  execution  is  issued  for  his  body.  li  the 
plaintilf  intends  to  issue  such  execution,  he  must  do  it  fortiiwith 
after  the  judgment  is  rendered.  If  lie  neglects  to  do  it  at  that  time, 
the  justice  may  pcrniit  the  defendant  to  dejiart,  and  the  bail  will 
be  discharged.  But  if  the  execution  is  immediately  issued,  and  the 
defendant  has  departed  without  leave,  the  return  of  the  constable, 
that  the  defendant  was  not  found,  will  render  the  bail  liable  on  the 
recognizance.  Suit  cannot  in  general  be  biought  on  the  recogni- 
zance, until  such  execution  is  returned.  An  action  of  (Jebt  may- 
be brought  on  the  recognizance,  and  a  recovery  had  of  the  amount 
of  the  judgment  rendered  against  the  origijial  debtor,  with  interest 
and  costs. 


Sec.   V.  —  FORM  of  a  mittimus,  issued  for  the  commitment  of  TTIF- 

DEFENDANT. 

The  State  of  Ohio townshi]-), county,  ss. 

To  the  keeper  of  the  jail  of  the  county  aforesaid,  greeting: 

Whereas,  C 1 ) has  been  arrested  by  a  capias,  and  is  now 

in  custody  of  I J ,  constable",  at  the  suit  of  A B ,  in 

an  action  of  [here  stale  the  kind  of  action  as  named  in  the  capias.^  now 

pending  before  me,  G H— ^ — ,  a  justice  of  the  peace,  in  and  for 

said  township:  and  whei'eas  said  action  has  been  adjourned  over  for 
trial,  until  [/lej-e  state  the  time  toichirh  the  suit  is  adjoi/rned  for  triaQ 

and  the  said  C D hath  failed  to  give  bail  for  his  appearance 

at  said  time  appointed  for  said  trial,  although  ordered  so  to  do. 
Therefore,  in  the  name  of  the  State  of  Ohio,  I  command  you  to  re- 
ceive the  said  C D into  your  custody,  in  the  jail  of  the 

county  aforesaid,  there  to  remain  until  the  said  time  of  said  trial, 
unless  before  that  time,  it  shall,  by  me,  be  otherwise  ordered,  or  he 
be  otherwise  discharged  according  to  law. 

Given  under  my  hand  and  seal,  this dav  of ,  A.  I).  1  8 — . 

G H ,  J.  p.  (Sea/.) 


FORM  OF  TfTE  RETURN   OF  THE  CONSTABLE. 

July  5,  1S50  —  I  committed  the  within  named  C D -,to 

the  custody  of  the  within  named  jailor,  with  whom  I  left  a  certified 

copy  of  this  writ.     Fees , 

I J ,  Constable. 


§5,  6.]  APPKARANCE    AND    ADJOURNMENTS.  53 


8eC,    VI. FORM  OF  A  PRECEPT  FOR  THE  BODY  OF  THE  DEFENDANT. 

The  State  of  Ohio, county,  ss. 

To  any  constable  of township,  greeting: 

Whereas,  C D was  committed  to  the  jail  of  said  county, 

at  the  suit  of  A B ,  there  to  remain  until  [hei^e  stale  the  time 

to  lohich  the  cause  was  adjourned  for  trial,]  unless  before  that  time 
it  should  be  otherwise  ordered  by  me:     You  are  therefore  hereby 

commanded  to  receive  the  said  C D ,  from  the  custody  of 

the  keeper  of  said  jail,  so  that  you  have  his  body  before  me  at  the 
time  aioresaid,  to  answer  to  said  action. 

Given  under  mv  hand  and  seal,  this day  of ,  A.  D.  1 8 — . 

G II ,  J.  p.  {Seal.) 

FORM  OF  TTIE  RETURN  OF  THE  CONSTABLE. 

Jnli/  5,  1 850.    I  have  the  body  of  the  within  named  C D . 

Fees cents. 


I J ,  Constable. 


CHAPTER  IX. 
OF  THE  ATTENDANCE  OF  WITNESvSES. 

SECTION    r.        FORM    OF    THE    SUBPCENA    FOR    WITNESSES,   HOW    SERVED,  ANO 
FORM  OF  THE  RETURN. 
II.      PROCEEDINGS    AGAINST  A  WITNESS    FOR    DISOBEYING    THE    SUB- 
PCENA, WITH  FORMS  OF  PROCESS  AND  DOCKET  ENTRIES. 


Sec    I. FORM    OF   the    subpoena    FOR    WITNESSES,   HOW    SERVED,  AND 

FORM  OF  THE  RETURN. 

When  a  party  to  a  suit  desires  the  attendance  of  a  witness,  the 
justice  issues  a  subjHtna,  in  the  form  following:* 

State  of  Ohio, county,  ss. 

To  any  constable  (»f  the  township  of ,  greeting: 

You  are  hereby  commanded  to  summon  J P and  .1 

A ,  to  appear  before  me,  G II ,  a  justice  of  the  ])eacc 

(a)  Stat.  529. 


54  ATTENDANCE    OF    WITNESSES.  [Pl^t.  1 ,  Ch.  9, 

for  said  township,  at  my  office,  on  the day  of ,  at  —  o'clock 

P.  M.  [or  A.  INI.,  as  the  case  vio}/  he^  on  said  day,  to  give  testimony 

and  the  truth  to  say,  in  a  cause  penchnu;  hetorc  me,  wherein  A 

B is  j)hiintitf,  and  C D is  dcfendant:(l)     Hereof  fail 

not,  under  the  penalty  of  the  law;  and  have  you  then  there  thia 
writ. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G H ,  J.  p.  {Seal.) 


The  subpoena  may  be  served  within  the  county,  either  by  tiie 
party  who  procures  it,  or  by  a  constable.  If  the  party  himself  serve 
it,  no  fees  can  be  allowed. "^ 

The  subpoena  should  be  either  read  to  the  witness,  or  a  copy  per- 
sonally served,  at  the  same  time  showing  him  the  original  if  he  re- 
quest it.  Leaving  a  copy  at  the  house  of  the  witness,  with  his 
family,  is  not  a  service;  and  for  so  doing  the  constable  is  not  entitled 
to  fees. 

If  a  witness,  at  the  time  a  copy  of  the  subpornia  is  served  upon 
him,  demand  his  fees,  that  fact  should  be  stated  in  the  return. 


FORM    OF    A    RETURN    TO    A    SUBPCF,NA. 

Served  the  within  writ  personally  upon  J P ,  wlw  de- 
manded /lis  fees.,  which  were  not  paid.     J A not  found. 

Fees cents. 

I J ,  Constable. 


Sec.    II. PROCEEDINGS  AGAINST  A  WITNESS  FOR  DISOBEYING   A  SUBPCENA, 

WITH  FORMS  OF  PROCESS  AND  POCKET  ENTRIES. 


If  a  witness  foil  to  attend,  upon  the  service  of  a  subpoena,  issued 
in  any  action,  suit,  complaint,  or  prosecution,  either  civil  or  crimi- 
nal, the  justice  may  issue  an  attachment  against  him  to  compel  his 
attendance.*^  The  attachment  cannot  issue  unless  the  subpoena  was 
personally  served;  and  if  served  by  the  party  to  the  suit,  the  justice 
should  require  his  affidavit  to  the  service  before  proceeding  against 
the  witness. 

When  a  witness,  at  the  time  a  subpoena  is  served  upon  him,  de- 
mands his  fees,  an  attachment  ought  not  to  issue  until  they  are  ten- 

(b)  Stat.  506,  $1.  (c)  Id.  525,  $103. 


(1)  If  tlie  party  to  the  suit  desire  the  witness  to  produce  papers  on  the  trial, 
add  in  tlie  subpoena,  at  tlie  (1),  "and  to  bring'  with  liinfi  and  prodiice  at  the  time 
and  pUice  aforesaid,  a  certain"  deed,  &c.  [here  give  a  description  of  ffie  deeds,  papers, 
letters,  &c.  to  be  produced,]  and  then  proceed  as  above,  ^hereof  fail  not,  &c.,)  to 
the  end. 


§1,  2.]  ATTENDANCE    OF    WITNESSES,  55 

dered.  If,  however,  he  does  not  demand  his  fees  until  brought  up 
by  attachment,  it  will  be  no  excuse  for  not  complying  with  the  sub- 
poena, that  his  fees  were  not  before  paid  or  tendered. 

If  a  witness  attend  at  the  trial,  he  may  refuse  to  be  sworn,  until 
the  party  calling  him  shall  have  paid  his  fees.^  A  witness  subpoenaed, 
and  attending  a  trial,  has  a  right  to  his  fees;  so,  if  he  is  examined, 
though  not  subpoenaed,  he  is  entitled  to  fees.* 


FORM  OF  ATTACHMENT  FOR  A  WITNESS. 


The  State  of  Ohio, county,  ss. 

To  any  constable  of township,  greeting: 

I  command  you  to  attach  J P ,  so  as  to  have  his  body 

before  me,  G H ,  a  justice  of  the  peace,  at  my  office,  in  the 

township  aforesaid,  on  the day  of ,  in  the  year  eighteen  hun- 
dred and ,  at  —  o'clock,  P.  M.  [ot^  A.  M.,  the  time  to  ichich  the 

cause  is  adjourned  to  trials  or  forthwith,]  to  answer  the  state  of  Ohio, 
of  a  certain  contempt  by  him  lately  committed,  as  is  alledged,  in 
disobeying  a  subpoena  issued  by  me  and  duly  served,(2)  *and  then 
also  to  give  testimony  and  the  truth  to  say,*  in  a  cause  pending  be- 
fore me,  wherein  A B is  plaintiff,  and  C D is 

defendant;  and  of  this  writ  make  legal  service  and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  1 8 — . 

G H .  (Seal) 


FORM  OF  RETURN  BY  CONSTABLE. 


July  5, 1 850.    I  have  the  body  of  the  within  named  J- 
Fees cents. 


Constable. 


Upon  the  return  of  this  writ,  with  the  person  of  the  witness,  the 
justice  must  fine  him  not  exceeding  ten,  nor  less  than  three  dollars, 
and  render  judgment,  aad  issue  execution  therefor,  and  for  costs,  in 
the  name  of  the  State  of  Ohio,  unless  the  witness  can  give  a  rea- 
sonable excuse  for  disobeying  the  subpoena.^  All  damages  which 
the  party  has  sustained,  for  the  want  of  the  testimony  of  the  wit- 
ness, may  be  also  recovered  by  suit,  before  a  justice,  if  they  do  not 
exceed  one  hundred  dollars.  ^ 

(d)  13  East's  Rep.  15 ;  1  Bl.  Rep.  36 ;  2  Cow.  845.  (<:)  Stat.  524,  $102. 

(e)  1  Bin.  46. 


(2)  If  the  suit  is  not  adjourned  over  to  the  time  mentioned  in  the  attachment 
for  the  appearance  of  the  witness,  or  the  attachment  is  returnable  forthwith,  then 
that  part  of  the  form  which  is  between  the  two  *'s  may  be  left  out. 


ATTENDANCK    OF    WITNESSES.       [Prt.  1,  CIl.  9,  §2.] 


FOHM  OF  A  DOCKET  ENTRT,  WHERE    AN    ATTACHMENT  IS  ISSUED  AGAINST  A 

WITNESS, 

Tlie  State  of  Ohio,  ^  Attachment  ajfainst  defendant  for  con- 
vs.  >    tempt,  etc.  in  faiHnir  to  appear  and  testify 

J P •.  3    on  the  day  of ,  18 — ,  as  duly 

sub])o>naed  to  do  in  the  case  of  A B ,  vs.  C D , 

then  j)en(Ung  for  trial  before  me.  See  docket,  ]y<\ji,c  \Jtere  insert  the 
page  contdiiiiiig  the,  case  in  ivJric/i  the  subpaiua  issurd^     Jimr  1,  184.5, 

issued  attaxdimcnt,  and  delivered  same  to  I ,T ,  for  a.p])ear- 

ance  of  defendant,  June  3,  1845,  at  2  o'clock,  P.  M.  to  answer  the 
premises. 

/jiwcS,  1845,  2  o'clock,  P.  M.  The  defendant  was  brought  be- 
fore me,  b^v  the  said  constable,  and  writ  returned, 

"I  have  the  body  of  the  within  named  J P . 

"  Fees cents.  I .T ,  Constable." 

Trial  had,  and  finding  the  premises  to  be  true,  and  the  defendant 
having  no  reasonable  excuse  to  assign  for  disobeying  said  subjxrna, 
or  for  failing  to  attend  as  a  witness  in  the  above  case,  it  is  considered 
by  me  that  the  State  of  Ohio  recover  of  said  defendant,  the  sum  of 
ten  dollars  fine,  and  the  costs  herein  taxed  at  —  dollars cents. 

Items  of  cost, . 


CHAPTER  X. 


OF  THE  CO-AIPETENCY  AND  INXC.AIPETENCY  OF  WITNESSES. 


SECTIOX    I.       THE    DIFFERENCE    BETWEEN  THE  COMPETENCY  AND  CREDIBILi- 
TT  OF  WITNESSES. 

II.      WHO  ARE  INCOMPETENT,  AND  HEREIN, 

(A)  From  want  of  understandings  or  on  account  of 

color. 

(B)  Frotn  want  of  religious  principle. 

(C)  Froyn  infamy  and  crime,  and  how  proved. 

(D)  From  interest,  and  how  restored. 


Sec.  I. THE  DIFFERENCE  BETWEEN  THE  COMPETENCY  AND  CREDIBILITY 

OF  WITNESSES. 

A  witness  may  be  competent,  and  at  the  same  time  not  credible; 
or  on  the  other  hand,  he  may  frequently  be  credible,  but  not  com- 
petent. For  instance:  an  individual  cannot  be  admitted  to  testify 
in  a  case  in  which  he  is  directly  interested;  and  it  matters  not  how 
small  his  interest  in  the  result  may  be,  or  how  exalted  his  character: 
the  law  declares  him  incompetent  to  testify.  On  the  other  hand, 
the  son  of  a  party  interested  in  a  suit  will  be  admitted  as  a  witness, 
however  strong  his  prejudices  may  be,  and  though  from  his  situation 
no  reliance  can  be  placed  upon  his  testimony:  the  law  pronounces 
him  a  competent,  though  he  may  not  be  a  credible  witness. 

An  incompetent  witness,  therefore,  is  one  who  cannot  be  admit- 
ted to  testify  in  the  cause.  If  the  situation  or  character  of  a  witness 
be  such  that  he  can  Ijc  permitted  to  testify,  his  credibility,  or  in 
other  words,  the  weigiit  of  his  testimony,  is  still  open  for  considera- 
tion, but  cannot  be  urged  as  a  ground  to  exckide  him  from  being 
examined  as  a  witness. 

A  person  is,  in  general,  competent;  that  is,  he  may  be  examined 
as  a  witness  if,  1st,  he  has  sufficient  understanding;  2d,  is  not  a  black 
or  mulatto;  3d,  nor  an  atheist;  4th,  has  not  been  convicted  of  an 
offence  punishable  by  imprisonment  in  tlie  pcnitentiar}';  and,  5th, 
is  not  interested  in  the  event  of  the  suit.  These  several  disqualifi- 
cations will  be  now  examined. 

8 


58  INCOMPETENT    WITNESSES.  [Prl.  1,  Ch.  10, 

Sec.    II. WHO  ARE  INCOMPETENT,  AND  IIEIIEIN, 

(A)  From  want  of  undcrslanding^  or  on  account  of  color. 

Insane  persons,  idiots  and  lunatics,  during  their  lunacy,  are  in- 
competent witnesses.  But  a  lunatic,  in  his  lucid  intervals,  when 
he  has  recovered  his  understanding,  is  coinpetent. 

A  person  born  deaf  and  dumb,  may,  if  he  h;is  sufficient  under- 
standing, give  evidence  by  signs  through  an  interpreter;  or  if  he 
can  write,  that  is  more  satisfactory.* 

Children  who  are  not  able  to  comprehend  the  moral  obligations 
of  an  oath,  cannot  be  examined.  Their  competency  does  not  de- 
pend upon  their  age:  but  upon  their  apparent  sense  and  under- 
standing. When  a  child  cannot  be  sworn,  the  account  it  may  have 
given  to  others,  in  relation  to  the  subject  matter  of  the  suit  is  inad- 
missible.'^ 

Bhrck  and  mulatto  persons  are  incompetent  to  testify  where  either 
party  is  a  white  person."^  As  a  mulatto  is  a  person  partaking 
equally  of  white  and  African  blood,  it  has  been  determined  that  a 
person  of  a  race  nearer  wdiite  than  a  mulatto,  is  admissible  as  a 
witness,  and  shall  be  deemed  a  white  person.*^ 

{B)  From  want  of  religious  principle. 

Universalists,  and  all  others  who  believe  that  God  will  punish 
perjury,  either  in  this  world  or  in  the  world  to  come,  are  compe- 
tent witnesses.®  But  atheists,  and  those  who  do  not  believe  in 
such  punishment,  are  incompetent.  The  form  of  administering 
the  oath  ought  to  be  such  as  the  witness  believes  most  binding  on 
his  conscience:  Jews  on  the  Pentateuch:  Mahometans,  on  the 
Koran,  &c. 

(C)  From  infamy  and  o'ime.,  and  how  jy?'oved. 

Persons  convicted  and  sentenced  for  any  crime  specified  in  the 
act  entitled  "an  act  for  the  punishment  of  crimes,"^  except  such  as 
are  described  in  the  third  and  twenty-fifth  sections,  are  incompe- 
tent to  testify;  unless  they  receive  from  the  Governor  a  general 
pardon  under  his  hand  and  the  seal  of  the.  State.'' 

In  order  to  establish  the  incompetency  of  a  witness  on  the 
ground  that  he  has  been  convicted  of  crime,  the  record  of  his  con- 
viction and  sentence,  duly  certified,  must  be  produced  before  the 
justice.' 

(a)  Per  Best,  C.  J.,  14  Eng.  C.  L.  Rep.  238.  (e)  Willes,  549 ;  2  Cow.  Rep.  431,  and  the  cases 
(h)  1  Phil.  Ev.  19.  there  cited. 

(c)  Stat.  594,  $9.  (C)  Stat.  -229. 

(d)  4  Ohio  Rep.  353  ;  Wriglil's  Rep.578.  (li)  Id.  2.i8.$41- 

(1)  Rex  V.  Carcinion,  8  East,  78. 


§2,(A),(B),(C),(D).]         INCOMPETENT    WITNESSES.  59 

The  question,  however,  may  be  put  to  a  witness,  whether  or  not 
he  is  guilty  of  the  crime;  but  he  is  not  bound  to  answer  it:  and 
even  if  he*^  admit  that  he  is  guilty,  still,  as  his  conviction  can  only 
appear  by  the  record,  the  answer  only  goes  to  his  credit,  and  not  to 
his  competency.'' 

{D)  From  interest,  and  how  7-estorcd. 

An  interest  that  disqualifies  an  individual  from  testifying  must  be 
some  legal,  certain,  and  immediate  interest,  however  small,  in  the 
result  of  the  cause,  or  in  the  record,  or  transcript  of  the  cause,  as 
an  instrument  of  evidence. 

In  the  first  place  it  must  be  a  legal  interest  in  the  event  of  the 
suit,  and  not  a  mere  bias  arising  from  prejudice,  relationship,  friend- 
ship, or  a  wish  that  the  party  may  succeed  in  whose  favor  the  wit- 
ness bears  testimony.'  It  must  also  be  such  a  direct  and  immediate 
interest  in  the  event  of  the  cause  that  the  legal  consequence  of  the 
judgment  will  be  to  better  the  situation  of  the  witness,  by  either 
securing  an  advantage  or  repelling  a  loss:  he  must  be  either  a  gainer 
or  loser  by  the  event." 

So,  the  witness  is  interested  in  the  event  of  the  suit  and  is  in- 
competent, if  the  transcript  of  the  judgment  can  be  evidence  for  or 
against  him  in  any  future  cause."  In  general,  the  transcript  can 
afterwards  only  be  evidence  for  or  against  the  immediate  parties 
thereto." 

There  is,  in  general,  an  implied  warranty  of  title  by  the  seller 
of  property.  Therefore,  where  a  suit  is  brought  in  relation  to 
property  and  the  ownership  thereof  is  contested  by  the  parties,  it 
seems  that  a  witness  who  is  answerable  to  one  of  the  parties,  in 
case  the  title  turn  out  to  be  defective,  is  not  competent  as  a  wit- 
ness to  support  the  title  ;P  but  he  is  competent  for  either  party  to 
prove  that  he  sold  the  property  to  one  of  them.i  So,  in  an  action 
for  the  breach  of  the  warranty  of  the  quality  of  property,  the 
person  who  sold  the  property  to  the  defendant,  and  gave  a  similar 
warranty  on  tho.t  sale,  is  a  competent  witness  for  the  defendant.'' 

Agents  and  servants  are,  in  general,  competent  witnesses  for  and 
against  their  principals  and  masters.  There  is,  however,  this  ex- 
ception to  the  rule:  in  an  action  against  the  master  or  principal, 
for  the  negligence  of  his  servant  or  agent,  the  servant  or  agent  is 
incompetent  to  disprove  the  negligence,  since  the  transcript  would 
be  evidence  of  the  amount  of  damages,  (though  not  of  the  fact  of 
the  negligence,)  in  a  subsequent  suit  by  the  master  or  principal, 
against  his  servant  or  agent,  for  the  same  negligence.'  Thus:  in  a 
suit  against   the  defendant  for  negligently  driving  a  mail  coach 

(k)  1  Pliil.  Ev.  230,  n.  (b.)  (q)  6  Eng.  C.  L.  Kep.  466  ;  4  Taunt.  18. 

(1)  3  T.  R.  33.  (r)  5  Esp.  99,  and  see  1  M.  and  lloh.  59,  cited  in 

(ni;   7  T.  n.  60.  3  Flarri.  Dig.  2146,  (J?m.  F.d.) 

(n)  Piiund.  n.  and  Ev.  941.  (s)  4  T.  R.  5K9  ;  3  Eng.  C.  h.  Rep.  53 ;  14  Id. 

(o)  3  T.  K.  33.  319,  339  ;  6  Esp.  73. 

(p)  6tar.  Ev.  1C46  ;  C  Johns.  Rep.  6  and  8,  n. 


60  INCOMPETENT    AVITNESSES,  [P/'^  1,  Ck.  10, 

against  the  plaintifT's  wagon  horse,  whereby  it  died,  it  was  holden 
that  the  plaintift""s  w'agoner,  who  was  driving  the  wagon  horse  at 
the  time  it  was  killed,  was  incompetent  as  a  witness  to  prove  that 
the  accident  happened  by  the  negligence  of  the  plaintiff"/ 

The  heir  cannot  be  a  witness  in  favor  of  the  intestate's  estate, 
unless  the  estate  is  insolvent.''  The  security  of  an  executor  or 
administrator  on  his  official  bond  may  be  a  witjiess  for  or  against 
the  executor  or  administrator;*^  but  bail  in  the  action  itself  cannot 
be  a  witness  for  the  party  for  whom  lie  is  security;  nor  can  the  wife 
of  the  bail/ 

The  circumstances  of  the  witness  standing  in  the  same  relation 
to  the  subject  matter  of  the  suit  as  the  party  by  whom  he  is  called 
to  testify,  is  not  sufficient  to  exclude  him  as  a  wi  ness.  The  true 
test  is,  whether  the  judgment  will  be  evidence  for  or  against  the 
witness,  Thereibre,  if  separate  actions  are  brought  against  two 
persons  for  the  same  trespass,  in  the  action  against  one,  the  other 
may  be  a  witness,  and  will  be  compelled  to  testify  for  or  against 
either  party,  if  called  upon  to  do  so.** 

A  witness  is  competent  who  believes  that  he  has  a  legal  interest 
in  the  event  of  the  suit,  when  he  has  not.^ 

When  the  witness  is  equally  interested  in  the  judgment,  for 
whichever  party  it  may  be  given,  he  is  a  competent  witness  for 
either  party.'' 

So,  when  the  interest  of  the  witness  is  against  the  party  who 
calls  him,  he  cannot  be  objected  to  on  account  of  such  interest  by 
the  other  party.^ 

The  general  rule  is,  that  if  the  witness  be  in  fact  interested  in 
the  event  of  the  suit  to  the  amount  of  even  one  cent,  he  is  incom- 
petent.'' -But  in  cases  where  corporations  of  a  public  nature^  com- 
prehending the  divisions  of  the  State,  or  institutions  for  charitable 
or  pious  purposes,  such  as  counties,  towns,  school  districts,  religious 
or  charitable  societies,  are  parties  to  the  suit,  or  interested,  the 
members  of  such  corporations,  having  no  individual  interest,  are 
competent  witnesses.'  The  trustees  of  a  township,  therefore,  are 
competent  witnesses  when  the  township  is  a  party  to  a  suit.  But 
when  corpoi'ations  of  a  private  nature^  instituted  for  special  pur- 
poses and  private  gain,  such  as  banks,  and  rail  road,  insurance, 
turnpike,  and  canal  companies,  bring  suit,  the  interest  of  the  cor- 
porators is  direct,  and  they  are  incompetent  to  testify  in  favor  of 
the  corporation.""  An  otlicer,  however,  of  such  corporation,  who 
owns  no  stock,  is,  like  other  agents,  a  competent  witness  for  or 
against  the  corporation. 

The  general  rule  is,  that  the  parties  to  the  suit  named  on  the 

(a)  4  Ens.  C.  L.  Rep.  164.  307;    2Munf.  148;     4  Mass.  518;     1 

(b)  Wrisiifs  Rep.  343.  Camp.  145;  4Ser!;.  and  Raw.  226. 

(c)  1  T.  R.  163;   Wright's  Rep.  179.  (h)  7  T.  R.  480;   VVrisht's  Rep.  105. 

(d)  16  Eng.  C.  L.  Rep.  335.  (i)  6  Ohio  Rep.  243;  Wright's  Rep.  661. 

(e)  6  Cow.  Rep.  369  ;  16  Eng.C.  L.  Rep.  402;  (k)  5  T.  R.  174. 

11  Id. '257.  (I)  Wright's  Rep.  374  ;  5  Ohio  Rep.  284;  sea 

(g)  8  Johns.  Eep.334;  4  Bibb,  445;  1  H.  Black.  6  Cow.  Rep.  369. 

(m)  5  Ohio  Rep.  234. 


§2,  (D).]  rNCOMPETENT    WITNESSES.  61 

docket,  are  incompetent  witnesses.  It  seems,  however,  that  a 
party  to  the  suit  may,  if  willing,  be  called  and  examined  as  a  wit- 
ness by  the  opposite  party. ^  So,  when  a  person  has  been  arbitra- 
rily made  defendant  to  prevent  his  testimony,  he  may,  if  nothing 
be  proven  against  him,  be  acquitted,  and  sworn  as  a  witness  for  the 
other  defendants.^ 

If  a  person  enter  into  an  agreement  for  the  jnayose  of  excluding 
his  own  testimony,  (as  if  a  person  acquainted  with  the  facts  of  a 
case  lay  a  wager  upon  the  verdict,  or  a  prosecutor  bet  he  shall  con- 
vict the  defendant,)  his  competency  to  give  evidence  is  not  thereby 
destroyed.'' 

A  witness  would  be  competent  if  he  obtained  an  interest  daring 
the  pendency  of  the  suit  by  the  procurement  of  one  party  and  with- 
out the  consent  of  the  other,  by  whom  he  is  called,'  if  the  witness 
and  the  party^  who  thus  attempts  to  smother  the  testimony,  knew 
or  had  reason  to  believe  that  the  witness  would  be  called  by  the 
opposite  party.  But  if  a  witness  becomes  interested  by  an  ordinary 
business  or  other  transaction,  w'ithout  the  procurement  of  a  party 
to  the  suit,  he  will  be  incompetent  to  testify.'' 

The  interest  of  a  witness,  may  be  divested  by  payment  or  release, 
and  his  competency  will  then  be  restored.  If  the  witness  execute 
a  release  of  his  interest,  his  competency  is  restored,  though  the  other 
party  refuse  to  accept  the  release.^ 

When  the  release  is  from  a  party  to  a  witness,  it  may  be  in  the 
form  following: 

A B ,  ^ 

V.  >    Suit  before  G H ,  j.  p. 

C D .  S 

For  value  received,  I  do  hereby  release  E F ,  a  wit- 
ness oflered  [or  to  be  offered]  by  me  on  the  trial  of  this  cause,  of 
any  claim  or  demand  which  I  may  now  or  may  hereafter  have 
against  him  by  reason  of  the  determination  of  this  suit,  or  any  matter 
either  directly  or  indirectly  brought  or  to  be  brought  in  question  in 
the  same  suit,  either  for  or  against  me:  And  I  do  farther  release 
him  from  all  demands  connected  with  or  depending  upon  the  sub- 
ject matter  of  this  suit,  or  any  part  thereof,  w'hicli  I  now"  or  may 
hereafter  have  against  him. 

Witness  my  hand  and  seal,  the day  of ,  A.  D.  1 8 . 

*  A B .  {Seal.) 

Sealed  and  delivered  in  presence  of  K L . 

When  the  claim  to  be  released  is  in  favor  of  more  than  one,  joint- 
ly, a  release  from  one  is  a  release  from  all. 

(e)  2  Saund.  V\.  and  Ev.  948;  1  Taunt.  378;  (i)  Per  Grope,  J.  3  T.  R.  37;  3  Camp.  380, 

14  Eiiff.  C.  L.  Rep,  448  ;    VVriglit's  Hep.  Per  Kent,  J.;  3  Jolins.  Casfs,  237  ;   1 

7(iG, /'cr  Wood,  J.;  13  Johns.  Kep. 517.  Lillell,  107;    4   Serg.   and   Raw.  222. 

((?)  B.N.  P.  285;  7  Taunt.  607;  2  Eng.  C.  L.  Some  of  these  cases  go  farther  tliani  am 

Rep.  2;V2.  willing  to  lay  down  the  rule  in  llie  text. 

(h)  1  Stra.  652;  3  Camp.  381,  Per  Ld.  Ellen-  (k)  Wright's  Iiep.452  ;  1  M.  and  S.  9;  3  Camp, 

liorougb.  380;  3  Grccnl.  165. 

(I)  Douj.  139. 


62  EXAMINATION    OF    WITNESSES.  [P/'t.   1,  Ch.   11, 


FORM  OF  A  RELEASE  FROM  A  AVITNESS  TO  A  PARTY. 

A B ,  i 

V.  \    Suit  before  G // ,  j.  p. 

C D .  ^ 

For  value  received,  I  do  hercliy  release  A B ,  plaintitT 

in  the  above  cause,  of  and  from  any  claim  or  demand  which  I  now 
or  may  hereafter  have  against  him,  by  reason  of  the  determination 
of  this  suit,  or  any  matter  either  directly  or  indirectly  brought  or 
to  be  brought  in  question  in  the  same  suit,  either  for  or  against  him: 
And  I  do  farther  release  him  from  all  demands  connectc'd  with  or 
depending  upon  the  subject  matter  of  this  suit,  or  any  part  thereof, 
which  1  now  or  may  hereafter  have  against  him. 

Witness,  etc. 


CHAPTER  XI. 


OF  THE  EXAMINATION  OF,  AND  PROOF  BY  WITNESSES. 

SECTION    I.       OF  ORDERING  WITNESSES  OUT  OF  COURT, 

II.  OF  THE  MANNER  OF  EXAMINING    WITNESSES THEIR  OPINION^ 

AND  RECOLLECTION. 

III.  HOW    THE    CHARACTER  AND  CREDIT  OF  A  WITNESS  MAY  BE  IM- 

PEACHED AND  SUPPORTED. 

IV.  OF  THE  PRIVILEGE  OF  NOT  ANSWERING  QUESTIONS. 

V.  PROCEEDINGS    AGAINST   A   WITNESS  FOR  REFUSING  TO  TESTIFY. 

VI.  NUMBER  OF  WITNESSES  FOR  THE  PROOF  OF  A  FACT;    AND  THE 

CONSEQUENCE  OF  SUBPCENAING  TOO  MANY  WITNESSES. 


Sec  I. OF  ORDERING  AVITNESSES  OUT  OF  COURT. 

During  the  examination  of  a  witness,  the  justice  will,  on  the  a]> 
plication  of  either  of  the  parties,  order  any  or  all  of  the  other  wit- 
nesses in  the  cause,  to  go  out  of  court,  so  as  to  prevent  any  combi- 
nation between  them. 


§1,2.]  EXAMINATION    OF    WITNESSES.  63 


Sec.  II. OF  THE  MANNER  OF  EXAMINING  WITNESSES THEIR  OPINION, 

AND  RECOLLECTION. 

The  party  holding  the  affirmative,  who  is  in  general,  the  plaintiff', 
opens  the  case  by  an  examination  of  his  evidence.  If  the  plaintiff' 
does  not  prove,  nor  the  defendant  admit,  any  cause  of  action,  it  is 
unnecessary  to  examine  the  evidence  on  the  other  side.  The  tes- 
timony of  the  plaintiff'  must  be  confined  to  his  bill  of  particulars. 
After  he  has  gone  through  with  his  proofs,  the  witnesses  for  the 
defendant  are  then  examined.  Each  party  has  the  right,  in  the 
first  place,  to  examine  his  own  witnesses,  without  the  interference 
or  comments  of  the  opposite  party.  This  rule  should  be  rigidly 
applied  by  the  justice,  as  well  to  preserve  order,  as  to  prevent  any 
unnecessary  waste  of  time.  After  the  party  calling  a  witness  has 
fully  examined  him,  the  other  party  has  a  right  to  cross  examine; 
and  then  the  party  who  called  the  witness,  may  re-examine  him.  If, 
in  the  progress  of  the  examination,  a  party  object  to  a  question, 
the  witness  should  be  stopped,  and  the  justice  decide  whether  the 
answer  to  the  question  will  tend  to  prove  or  disprove  the  subject 
matter  in  dispute,  or  the  question  be  otherwise  proper.  After  the 
testimony  is  closed  on  both  sides,  and  not  before,  the  parties  may 
comment  on  the  law  and  testimony.  A  wrangling  dispute  between 
the  parties  or  a  party  and  a  witness,  should  never  be  permitted;  it 
degrades  the  justice,  and  excites  the  bad  feelings  of  the  parties. 

Leading  questions,  that  is,  such  as  instruct  a  witness  how  to  an- 
swer in  material  points,  are  not  in  general  allowed,  except  on  cross 
examination:  for,  to  put  into  the  mouth  of  witnesses  the  words  to 
be  echoed  back,  or  to  suggest  the  answers  which  the  party  wishes 
to  get  from  them,  would  only  serve  to  strengthen  that  bias,  which 
they  are  usually  so  much  disposed  to  feel  in  favor  of  the  party  call- 
ing them.  Thus:  —  Is  or  is  not  that  cow  icorth  ticenfi/-Jire  dollars? 
Did  or  did  not  the  defendant  say  he  oiced  the  plaintiff  Jifly  dollars 
and  forty-two  cents^  or  how  much  did  he  say?  Was  this  on  thejifth 
of  May^  or  when  was  it?  These  and  the  like  questions,  containing 
in  themselves,  the  place^  kind^  cpaantity^  iime^  price^  or  other  things 
sought  for  in  proof,  are  leading  questions  which  are  not  to  be  put. 
''What  is  that  cow  worth?"  "State  the  conversation  you  had  with 
the  defcndnnt  in  relation  to  his  owing  the  plaintiff?'  '•'•  When  was 
this?"  These  would  iiave  been  proper  questions  instead  of  those 
above  mentioned. 

Sometimes  it  is  necessary  and  proper  to  lead  the  witness  direct- 
ly to  the  subject  about  which  you  wish  him  to  testify;  as  is  done 
when  the  witness  is  asked  to  '•'•state  the  conversation  which  you  had 
with  the  defendant^  in  j-elation  to  his  oicing  the  plaintiff.^""^  If  the 
justice  finds  that  the  witness  is  reluctant  in  the  answers  he  gives, 
and,  in  a  word,  is  what  is  called  an  unwilling  witness;  he  may  then 
suffer  the  party  who  called  him  to  testify,  to  put  leading  questions. 

(a)  4  Wend.  Rep.  229,  wlicre  tliis  sulijcct  is  fully  examined. 


64  EXAMINATION  OF  WITNESSES.  [Prl.  1,  C/l.  1  1, 

In  cross-examinations,  leadinfj;  questions  may  be  asked,  and  every 
thing  inquired  into,  which  may  have  any  connection  with  the  facts 
in  the  cause. 

A  witness  is  permitted  to  testify  only  to  such  facts  as  are  within 
his  own  recollection.  Jf  he  made  a  memorandum  of  the  facts,  it 
cannot  be  received  in  evidence,  but  the  witness  may  use  it  to  assist 
his  memory.  If  the  paper  bring  a  fact  to  his  recollection,  he  may 
testify;  but  if  he  can  only  testify  to  the  fact  from  finding  it  on  the 
paper,  and  not  from  recollection,  his  testin'iony  cannot  be  received. 
Any  paper  whatever  may  be  shown  to  a  witness,  to  enable  him  to 
correct  a  mistake,  and,  in  general,  to  assist  his  memor3^  When  a 
W' itness  cannot  recollect  the  precise  w^ords  of  a  conversation  about 
which  he  is  called  upon  to  testify,  he  may  give  his  impression  as  to 
the  substance. *" 

A  witness  cannot,  in  general,  be  asked  his  opinion;  for  his  opin- 
ion is  not  evidence:  he  must  speak  to  facts.  But  in  questions  of 
science  and  trade,  or  which  relate  to  any  profession  or  calling,  per- 
sons of  skill  therein  may  give  their  opinion  in  evidence.  Thus, 
physicians,  carpenters,  and  engineers,  have  been  allowed  to  give 
their  opinion  upon  subjects  connected  with  their  professions  or 
callings.  The  value  of  property,  and  evidence  as  to  general  char- 
acter,"is  founded  upon  opinion,  and  is  proved  by  it.  So  in  ques- 
tions relating  to  the  identity  of  property,  a  witness  can  in  general 
only  testify  as  to  his  opinion  and  belief,  and  it  is  all  that  the  law 
can  require. 

SfX.  III. now  THE  CHARACTER  AND  CREDIT  OF  A  WITNESS  MAY  BE  IM- 
PEACHED,   ETC. 

In  order  to  impeach  the  credit  of  a  witness,  evidence  may  be 
given  of  statements  made  by  him  at  variance  w^ith  his  testimony 
on  the  trial. "^ 

A  witness  cannot  be  asked  on  cross-examination,  a  question  out 
of,  or  irrelevant  to,  the  matter  in  dispute,  with  a  view  to  contradict 
the  answer  by  other  witnesses,*^ 

If  a  witness  gives  evidence  contrary  to  that  which  the  party  call- 
ing him  expected,  the  party  cannot  give  general  evidence,  to  show 
that  the  witness  is  not  to  be  believed  on  his  oath;*  but  he  may 
prove  the  truth  of  the  facts  denied,  by  other  witnesses.^ 

In  relation  to  the  mode  of  impeaching  the  character  of  a  witness 
for  truth,  the  following  remarks  of  Wright.,  J}"  may  be  here  prop- 
erly quoted:  though  they  must  be  understood  with  this  limitation: 
that  a  witness  shall  not  be  permitted  to  speak  from  his  own  know- 
ledge of  the  character  of  the  impeached  witness,  if  the  latter  has 
acquired  a  reputation. 

'•'  It  has  been  repeatedly  decided  by  this  court,  that  the  proper 
questions  to  ask  on  such  examination,  are, — 

(b)  1  Johns.  Rep.  99.  (e)  3  V..  and  C.  749:  10  Enj.  C.  L.  Rep.  220. 

(c)  2  Ohio  Rep.  -230.  (g)  1    VV.  Rl.  3B5:  3  Eng.  C.  L.  Rep.  3771. 

(d)  Wright's  Rep.  43.  (li)  VVrigl.t's  Rep.  652. 


§3,  4.]  EXAMINATION    OF    WITNESSES.  65 

'■'■Firsts  Have  you  the  means  of  knowing  the  general  character 
of  A.  S.  (the  witness)  for  truth?  If  the  answer  be  in  the  negative, 
you  can  ask  no  further;  but  if  the  answer  be  in  the  affirmative,  you 
may  ask  one  or  the  other  of  the  following  questions: 

'•'•  Second^  From  your  knowledge  of  his  character  would  you  be- 
lieve him  under  oath?  or, 

"Is  his  character  as  good  as  men  in  general? 

"On  cross-examination,  you  may  inejuire  into  the  witness'  means 
of  knowing  the  character. 

"It  is  the  character,  the  conduct  and  habits  of  the  witness,  which 
it  is  sought  to  learn,  not  his  reputation  alone,  or  what  the  world  says 
of  hbn.  His  character  may  be  well  known  to  the  witness  as  infa- 
mous, such  as  to  render  him  unworthy  of  belief,  yet  the  knowledge 
of  it  may  not  have  gone  abroad  so  as  to  affect  his  reputation.  Sup- 
pose I  have  raised  a  child,  and  know  him  to  be  a  thief  and  a  liar^ 
unworthy  of  belief  on  oath,  but  the  knowledge  of  his  character  has 
not  gone  abroad;  it  is  obvious  that  it  is  my  knowledge  which  dis- 
credits the  witness,  and  which  should  go  to  the  jury.  A  good  rep- 
utation may  be  offered  to  sustain  the  character,  as  one  means  of  re- 
futing the  impeaching  evidence,  for  without  a  good  character  it  must 
be  supposed  difficult  to  acquire  a  reputation  for  one." 

Although  you  may  on  cross-examination,  inquire  into  the  means 
of  the  witness  of  knowing  the  character  of  the  impeached  witness, 
yet  the  party  who  calls  a  witness  to  impeach  another  witness  can- 
not be  permitted  to  ask  him  for  a  statement  of  the  facts  upon  which 
he  grounds  his  opinion  of  the  bad  character  of  the  impeached 
witness. 


Sec.  TV. OF  THE  PRIVILEGE  OF  NOT  ANSWERING  Q,UESTIONS. 


A  witness  may  object  to  answering  a  question,  which  will  dis- 
grace him,  or  criminate  him,  or  expose  him  to  punishment,  or  which 
he  thinks  will  tend  to  criminate  him,  though  the  answer  would  not 
directly  prove  his  guilt.''  If  a  witness  says,  under  oath,  that  he 
cannot  answer  the  question  without  criminating  himself,  he  cannot 
^^e  compelled  to  state  how  or  wherein  the  answer  would  criminate 
him,  because  he  might  thereby  disclose  his  guilt.  But  a  witness 
cannot  refuse  to  answer  a  question  arising  in  the  cause,  on  the 
ground  that  the  answer  may  establish  the  fact  that  he  owes  a  debt, 
or  is  subject  to  a  civil  suit. 

If  a  witness  after  being  told  that  he  is  not  bound  to  answer  a 
question  that  may  criminate  him,  still  chooses  to  answer  it,  he  is 
bound  to  relate  every  thing  relative  to  the  trnnsaction,  and  cannot 
afterwards  object  to  any  further  question  that  has  a  tendency  to 
criminate  him.' 

fk)  3Taunt.424;  Wnclit'sRcp.  43.         fl)   M.  and  M.  47  ;  22  Kng.C.  L.  Rep.  244  ,   12  I'l.  268. 
9 


66  EXAMINATION  Oi'  WITNESSKS,     [Pl'l.  I,  C/l.  1  1,  §5,  6.] 


Sec.  V. PROCEEDINGS  AGAINST  A  WITNESS  FOR  REFUSING  TO  TESTIFY. 

When  a  witness  is  asked  a  question  relating  to  the  case  which  he 
is  bound  to  answer,  and  he  refuses  to  testily,  the  justice  may  fine 
him  ony  sum  not  exceeding  ten  nor  less  than  three  dollars,  and  ren- 
der judgment  in  the  name  of  the  State  of  Ohio,  and  issue  execution 
therefor.  The  witness  is  also  liable  to  the  suit  of  the  party  injured 
for  such  damages  as  he  may  have  sustained  for  want  of  the  testi- 
mony,"" wiiich  may  he  recovered  before  a  justice,  if  they  do  no  ex- 
ceed one  hundred  dollars. 


FORM  OF  A  DOCKET  ENTRY,  WHEN  A  WITNESS   IS    FINED    FOR    REFUSING    TO 

TESTIFY. 

The  State  of  Ohio,  ^ 

vsi  >       Ju7ie  5,  1 850. 

C D .  S 

C D was  duly  sw^orn  as  a  witness  on  the  trial  before 

me  of  the  suit  of  A B ,  vs.  D E ;  and  now  here, 

before  me,  on  said  trial,  refuses  to  testify,  not  alledging  any  just  or 
legal  cause  therefor:  Whereupon,  it  is  considered  by  me,  that  the 
State  of  Ohio  recover  of  said  C D ,  for  his  said  delinquen- 
cy, a  fine  oi' Jive  dollars,  and  the  costs  herein,  taxed  at  tivcnly-Jive 
cents. 

G H ,  J.  p. 


Sec.  VI. OF   THE   NUMBER  OF  WITNESSES  FOR  THE  PROOF  OF  A  FACT, 

AND  THE  CONSEQ,UENCE  OF  SUBPOENAING  TOO  MANY  WIT- 
NESSES. 

The  general  rule  is,  that  a  single  witness,  if  credible,  is  sufficient 
for  the  proof  of  any  fact.  When,  however,  a  person  is  on  trial 
for  perjury,  one  w^itness  is  not  sufficient  to  disprove  the  fact  sworn 
to  by  the  defendant,  as  it  would  only  be  oath  against  oath.  In  ad- 
dition to  the  testimony  of  one  witness,  there  should  be  some  other 
independent  evidence  showing  that  the  fact  sworn  to  was  false. 

If  a  party  order  a  subpoena  for  more  than  two  witnesses,  to  prove 
the  same  fact^  he  must  himself  be  taxed  and  pay  the  fees  of  the  wit- 
nesses exceeding  two  to  the  same  fact." 

If  witnesses  ai-e  subpoenaed  and  not  called  and  examined  by 
either  party,  the  party  who  subpoenaed  them  must  be  taxed  for  and 
pay  their  fees.  But  if  a  defendant  confess  judgment,  or  admit  be- 
fore the  justice,  the  claim  or  demand  to  be  just,  or  the  plaintifl'  be- 
come nonsuit,  the  fees  of  the  witnesses  not  examined  are  taxed  and 
collected  wdth  the  costs  of  the  suit,°  as  in  other  cases. 

(m)  Stat.  524,  $102.  (n)  Id.  525,  $104.  (o)  Id.  ib. 


CHAPTER  XII. 


OF  PRESUMPTIVE  AND  HEARSAY  EVIDENCE. 


SECTION    r.      OF  PRESUMPTIVE  EVIDENCE,  AND  HEREIN, 

(A)  Of  the  nature  of  presumptive  evidence. 

(B)  Presumption  of  payment. 
\C)  of  property. 

(D)  of  the  death  of  a  person. 

(E)  that  a  person  holds  an  office. 

II.    OF  HEARSAY  EVIDENCE. 


Sec.    I. OF  PRESUMPTIVE  EVIDENCE,  AND  HEREIN, 


{A)  Of  the  nature  of  presumptive  evidence. 

Evidence  consists  either  of  positive  or  presumptive  proof.  The 
proof  is  positive,  when  a  witness  speaks  directly  to  a  fact  from  iiis 
own  immediate  knowledge;  and  presumptive,  when  the  fact  to  be 
established  is  not  proved  by  direct  testimony,  but  is  inferred  from 
circumstances  proved,  which  either  necessarily,  or  usually  attend 
such  fact.  It  is  sometimes  impossible  to  prove  directly  the  fact 
itself,  but  proof  of  other  circumstances  may  be  as  satisfactory  evi- 
dence of  the  existence  of  the  fact  to  be  established,  as  if  it  were 
directly  and  positively  proved.  It  is  easier  to  feel  this  certainty 
that  a  tact  exists  from  circumstantial  proof,  than  to  define  it.  If  the 
remote  circumstances  offered  to  be  proved  be  such  as  may  afford  a 
fair  and  reasonable  presumptiom  that  the  fact  to  be  proved  exists, 
they  should  be  received  in  evidence,  and  not  otherwise.  It  is  obvi- 
ous that  a  presumption  is  more  or  less  likely  to  be  true,  according 
as  it  is  more  or  less  probable  that  the  circumstances  proved  would 
not  have  existed  unless  the  fact  which  is  inferred  from  them  had 
also  existed;  and  that  a  presumption  is  to  be  relied  on  no  longer, 
when  the  contrary  is  actually  proved. 

As  almost  any  fact  is  capable  of  being  proved  by  presumptive  as 
well  as  by  positive  evidence,  a  few  of  the  most  useful  cases  will  bo 
selected,  as  examples  of  the  nature  and  application  of  presumptive 
evidence. 


68  PRF.SUMPTiVr,   EVIDENCE.  [Py/.  1,C7/.   12, 

(B)  Presumption  of  •payment. 

If  a  landlord  give  a  receipt  for  the  rent  last  due,  it  may  be  pre- 
sumed that  all  former  rent  due  by  the  tenant  has  been  paid.* 

rroof  that  the  plaintilf  and  other  workmen  employed  by  the  de- 
fendant, came  regularly  to  receive  their  wages  from  the  defendant, 
whose  practice  it  was  to  pay  every  week,  and  that  the  plaintiff  had 
not  been  heard  to  complain  of  non-payment,  is  presumptive  evidence 
of  payment.'' 

Payment  of  a  bond  is  presumed,  after  twenty  j^ears  have  elapsed 
from  the  time  it  was  due,  and  no  demand  )iiade,'  But  this  pre- 
sumption of  payment  may  be  destroyed  by  the  defendant's  admis- 
sion of  the  debt,  or  proof  of  payment  of  interest  within  the  twenty 
years,  or  that  the  defendant  has  resided  abroad  during  the  whole  of 
the  time,  or  any  other  circumstance  showing  that  the  bond  has  not, 
in  fact,  been  paid.*^ 

(C)  Presumption  of  property/. 

Proof  of  possession  is  presumptive  evidence  of  ownership;  and 
possession,  with  the  assertion  of  property,  or  possession  alone,  gives 
the  possessor  such  a  property  as  will,  in  general,  enable  him  to 
maintain  an  action  against  a  wrongdoer. 

(D)  Presumption  of  the  death  of  a  jicrson. 

As  to  a  person  of  whom  no  account  can  be  given,  the  presump- 
tion of  his  being  still  alive,  ends  at  the  expiration  of  seven  yearR 
from  the  time  that  he  w^as  last  known  to  be  living.*^ 

(JE)  Presumption  that  a  person  holds  an  office. 

Proof  that  a  person  is  acting  in  an  official  capacity,  is  jtresump- 
tive  evidence  that  he  has  been  duly  commissioned  and  sworn  ;^  and 
such  evidence  may,  in  general,  be  received,  without  the  production 
of  his  commission,  or  proof  that  he  has  taken  an  official  oath,  or 
executed  an  official  bond. 

Sec.    II. OF  HEARSAY  EVIDENCE. 

What  a  third  person  has  said  in  rebuion  to  a  fact,  cannot,  in  gen- 
eral, be  received  as  evidence  of  the  fact. 

If  a  fact  is  to  be  substantiated  against  a  person,  it  ought  to  be 
proved  in  his  presence  by  the  testimony  of  a  witness  sworn  to  speak 
the  truth:  hearsay  evidence  is  not,  therefore,  in  general,  admissible. 

(a)  15  Jolinp.  Rep.  479.  rule  seems,  in  England,  io  have  grown  out 

(b)  1  Esp.  Rep.  269  ;  19  Eng.  C.  L.  Rep.  284,  of  the  law  in  relation  to  bipamy.     In  this 

note  ;  3  Camp.  10.  State,  pcrl-.aps.five  years'  al>sence  of  a  lius- 

(c)  1  T.  R.270.  band  would  raise  the  iircsumption  of  liis 
M)  2  Ens.  C.  L.  Rep.  314  ;  Wright's  Rep.  524,               decease.     Sec  Stat.  230  ^7. 

Per  Lane,  J.  (g)  10  East,  211  ;  14  Eng.  C.  1..  Fcp.  274  ; 

(e)  ,6  East,  84  ;  6  Eng.  C.  L.  Rep.  476.     Tliis  5  Ohio  Rep.  216. 


§1.(B),(C),(D),(E),2.]  HEARSAY    EVIDENCE.  69 

There  are,  however,  certain  instances  in  which,  from  the  neces- 
sity of  the  case,  hearsay  evidence  is  received:  as, 

1.  If  a  witness  who  was  examined  in  a  former  action  be  dead, 
what  he  swore  at  the  first  trial  may  be  proved  in  the  second  action 
by  one  who  heard  him  give  evidence.'*  The  person  called  to  prove 
what  a  deceased  w  itness  said,  must  not  testify,  miless  he  can  under- 
take to  repeat  precisely  the  very  words  of  the  deceased  witness; 
and  to  render  what  a  witness  swore  on  a  former  trial,  evidence,  it 
must  have  been  in  a  suit  between  the  same  parties,  and  the  point  in 
issue  the  same.  That  a  witness  is  beyond  the  reach  of  a  subpoena 
and  cannot  be  found,  will  not  render  proof  of  what  he  swore  on 
the  former  trial,  evidence.' 

2.  Hearsay  is  admissible  evidence  of  the  death  of  a  person.'' 

3.  The  dying  declarations  of  a  person  who  has  received  a  mortal 
injury  are  admitted  in  criming)]  prosecutions.'  But  such  declarations 
can  only  be  received  in  relation  to  the  circumstances  of  the  mortal 
blow,  when  the  person  making  the  declaration  has,  at  the  time,  given 
up  all  hope  of  recovery.'" 

4.  When  it  is  necessary,  in  the  course  of  a  cause,  to  inquire  into 
the  nature  of  a  particular  act,  or  the  intention  of  the  person  who 
did  the  act,  proof  of  what  the  person  said  at  the  time  of  doing  it^  is 
admissible  for  the  purpose  of  showing  its  true  character;"  but  not 
for  the  purpose  of  proving  the  act  itself.  So,  the  admissions  of  a 
person  from  whom  both  the  parties  to  a  suit  derive  title  to  the  sub- 
ject matter  in  controversy,  made  by  him  at  or  before  the  sale,  are, 
it  seems^  admissible  in  evidence  for  or  against  either  of  the  parties 
to  such  suit.  Thus:  where  the  plaintiff  sued  the  defendant  in  tro- 
vei',  for  a  horse,  which  one  claimed  as  a  gift  and  the  other  as  a  pur- 
chase, from  one  Post;  it  was  holden  that  the  declarations  of  Post, 
made  while  he  claimed  the  property,  could  be  admitted  in  evidence 
against  his  own  title."  In  general,  however,  what  a  party  to  a  con- 
tract or  transaction,  or  a  party  to  a  suit,  said  at  another  or  posterior 
time,  cannot  be  given  in  evidence  by  him^  to  affect  the  contract  or 
transaction,  but  may  be  called  out  by  the  other  party  to  the  suit. 
When  one  party  to  a  suit  proves  what  the  other  has  said,  the  latter 
may  then  prove  all  that  he  said  on  the  occasion;  but  not  what  he 
said  in  other  conversations.  The  object  and  scope  of  this  rule  is 
only  to  let  in  the  whole  conversation  that  transpired  on  the  occa- 
sion referred  to  by  the  witness,  so  that  no  mistake  may  be  made  in 
the  extent  or  character  of  the  admission;  which  might  be  the  case 
by  receiving  a  part  of  it  in  evidence. 


(h)  17  Johns.  Rep.  176.  (m)  15  Johns.  Rep.  286. 

(I)  4  T.  R.  290  ;  VVri?lit's  Rep.  3.',1.  648  ;  (n)  Wright's  Rep.  506. 

GCow.  Rop.  162.  (o)  Wri^lit's  Rep.  441  ;  hut  sec  7  Cow.  Ucp. 
(k)  15Jolin8.  Rep.  226.  759,  n.  (h). 

(I)  1  Phil.  Ev.212. 


70  IIKARSAY    EVIDENCE.  [PW.  1.  CA,  1 2,  §2,] 

5.  If  a  person  who  has  knowledge  of  a  fact,  make  an  entry  of  it 
in  his  books,  and  that  fact  is  of  such  a  nature  that  he  charges  him- 
self or  discharges  another  upon  whom  he  could  otherwise  have  a 
claim,  such  entry  will  be  admissible  evidence  of  the  fact  contained, 
after  the  death  of  such  person,  if  he  could  have  been  examined  as 
to  the  fact  during  his  lifetime.  As,  where  a  (juestion  arose  as  to  the 
age  of  a  child,  un  entry  made  by  a  deceased  physician  in  his  book, 
of  having  delivered  the  woman  of  a  child  on  a  certain  day,  and  mark- 
ed paid^'^wcis  admitted  as  evidence  to  show  -the  tiuic  when  the  child 
was  born.P  So,  to  prove  the  delivery  of  beer  to  the  defendant,  ev- 
idence was  received  that  a  deceased  drayman  came  every  night  to 
the  clerk  of  the  brew  house  of  tlie  plaintiff,  and  gave  the  clerk  an 
account  of  the  beer  delivered  out  during  the  day,  which  he  set  down 
in  a  book  to  which  the  drayman  set  his  hand;  this  was  held  good  ev- 
idence of  the  delivery  of  the  beer.i 

6.  The  memorandum  of  a  deceased  father,  as  to  the  time  of  the 
birth  of  his  son,  is  evidence  to  prove  the  time  of  his  birth."" 

(p-)  10  East.  109.  (0  Snurif].  PI.  and  Ev.  58. 

(q)  Sec  1  Salk.  285  ;  8  Wheat.  326 ;  15  Mass.  380  ;  3  Pick.  96 ;  20  Jolins.  Rep.  168. 


CHAPTER  xm. 


OF  ADMISSIONS. 


SECTION    I.         OF  ADMISSIONS  BY  THE  PARTIES  TO  A  SUIT. 
H.  BY  TENANT, 

m.  BY  AGENTS. 

IV.  BY  THE  WIFE. 

V.  BY  PARTNERS. 

VI.  BY  A  CO-TRESPASSER,  AND  OTHERS    WHO    HAVF. 

ACTED  JOINTLY. 

VII.  BY  CRIMINALS. 

VIII.  HOW  ADMISSIONS  MUST  BE  CONSTRUED. 

IX.  OF  ADMISSIONS  WHICH  CANNOT  BE  GIVEN  IN  EVIDENCE  AGAINST 

A  PARTY'. 


Sec.   I. OF  ADMISSIONS  BY  THE  PARTIES  TO  A  SUIT. 

It  may  be  proper  to  repeat  here,  that  a  party  cannot  introduce  as 
evidence,  his  own  declarations;  but  that  if  the  opposite  party  prove 
what  he  said,  he  may  then  prove  the  wdiole  conversation  that  tran- 
spired at  the  time  or  times  mentioned  by  the  witness,  but  not  what 
was  said  in  another  conversation  at  a  different  time.(l) 

The  express  admissions  of  a  party  to  a  suit,  or  admissions  im- 
pHed  from  his  conduct,  are  evidence  against  him.  When  the  exist- 
ence of  a  debt,  or  particular  right,  has  been  asserted  in  the  presence 
and  hearing  of  a  party,  which,  under  the  circumstances,  naturally 
called  for  contradiction  on  his  part,  and  he,  by  his  silence,  acqui- 
esces, it  is  evidence  that  he  admits  the  debt  or  right.  Where  a 
party  expressly,  or  by  his  conduct,  makes  admissions,  he  is  at  lib- 
erty to  prove  the  fact  admitted  to  be  untrue,  and  is  not  concluded 
by  them,  unless  another  person  has  been  induced  by  them  to  alter 
his  condition;  in  w^hich  case  the  party  is  not  permitted  to  dispute 
their  truth,  with  respect  to  that  person,  in  that  transaction;  but  as 
to  third  persons  who  have  not  been  induced  to  alter  their  condition 
on  account  of  his  admissions,  he  is  not  bound  by  them,  (if  he  can 
prove  that  the  admissions  were  made  under  a  mistake,  or  were  un- 
true,) but  may  disprove  the  facts  admitted.* 

(a)  2  Ohio  Rep.  509 ;  17  Eng.  C.  L.  Rep.  449.^ 
(1)  Sec  page  fiO. 


72  OK    AI'MISSIONS.  [P/7.  I,  C'A,  13, 

It  ^vill  be  hereafter  seen(2)  that  in  general  tlie  contents  oi'  a  wri- 
ting cannot  be  proved  by  witnesses:  the  writing  itself  should  be  pro- 
duced. In  cases  where  the  writing  should  be  produced,  you  cannot 
give  in  evidence  the  admission  of  the  opposite  party  to  prove  its 
contents.  It  sometimes  happens  that  a  jiarty  in  a  conversation  in 
relation  to  the  contents  of  a  written  instrument,  states  facts  out  of 
the  intrument,  which  could  not  be  proved  by  its  contents  if  produced. 
These  admissions  of  facts  out  of  the  instrument  may  be  received  as 
evidence,''  ])ut  not  to  prove  the  (contents  of  the  instrument,  unless 
the  circumstances  in  relation  to  the  instrument  are  such  as  to  per- 
mit verbal  testimony  to  be  received  of  its  contcnts,(3) 


Sec.  II.  —  ADMISSIONS  by  tenant. 

A  tenant  is  always  considered  as  admitting  the  title  of  the  land- 
lord under  whom  he  holds,  and  will  not  be  jiermittcd  afterwards  to 
dispute  it;  he  may,  however,  show  that  his  landlord's  title  had  ex- 
pired after  the  lease  was  made,  Ijut  cannot  dispute  the  right  under 
which  he  himself  is  in  possession,*^  until  he  first  restores  the  posses- 
sion to  the  landlord,*^ 


Sec.    III. ADMISSIONS  BY  AGENTS. 

The  admissions  of  an  agent  as  to  acts  witliin  the  scope  of  his  au- 
thority, and  made,  ivhen  so  actings  are  as  conclusive  evidence 
against  the  principal  as  if  the  principal  himself  had  made  the  admis- 
sions. But  the  admissions  of  an  agent,  not  made  at  the  time  of  the 
transaction,  but  afterwards,  are  not  evidence.  Thus:  the  letter  of 
an  agent  to  his  principal,  containing  a  narrative  of  the  transaction 
in  which  he  had  been  employed,  is  not  admissible  in  evidence 
against  the  principal.  In  such  case  the  agent  himself  is  the  proper 
witness."' 

Before  the  admissions  of  an  agent  can  be  given  in  evidence,  the 
fact  of  his  agency  must  be  proved,^  and  it  must  appear  that  the  ad- 
mission was  made  with  regard  to  a  matter  within  the  scope  of  the 
agent's  author  it  v.'' 


Sec.  IV.  —  ADMISSIONS  BY  the  avife. 

In  general,  the  admissions  of  the  wife  cannot  be  given  in  evidence 
against  the  husband.     Thus:  the  wife's  receipt  for  wages  earned 

(b)  5  Carr.  and  P.  542.  fc)  4  Taunt.  565  ;  10  Vcs.  123  ;  5  Enj?.  C.  T.. 

(c)  3  Ohio  Rep.  59.  295  ;  1  Marsh.  Ky.  Rep.  Rep.  454 ;  Wright's  Rep.  595.  662. 

99.  330.  245.  (g)  1  Esp.  61  ;  3  Eng.  C.  L.  Rep.  386. 

(d)  Wright's  Rep.  216.  576.  (h)  17  Eng.  C.  L.  Rep.  133. 

(2)  See  Part  1,  Chap.  14. 

(3)  'As  to  cases  in  which  the  contents  of  n  writinpf  may  be  proved  by  witnesses, 
see  Part  1,  Chap.  14. 


§2, 3, 4,  5,  6,  7.]  OF  ADMISSIONS.  73 

by  her,  is  not  evidence  against  the  husband.''  But  if  he  suffer  her 
to  transact  business  for  him,  she  may  be  considered  as  his  agent, 
and  her  admissions  and  acts  in  relation  to  such  business,  or  the  hus- 
band's subsequent  acknowledgment  or  ratification  of  her  acts,  will 
be  as  binding  upon  him,  as  tlie  admissions  and  acts  of  any  other 
agent.'(4) 


Sec.  V,  —  ADMISSIONS  by  a  partner. 

The  declaration  of  one  partner,  is  evidence  against  his  co-partner 
in  matters  relating  to  the  partnership. (5) 

Sec.  VI.  —  admissions  by  co-trespassers  and  others,   who  have 

ACTED  jointly. 

When  there  is  a  unity  of  design  and  purpose  proved  to  have  ex- 
isted between  two  or  more  wa'ongdoers  or  trespassers,  the  acts  and 
declarations  of  any  one  of  them,  at  tke  time  of  the  transaction, 
and  in  furtherance  of  the  general  object,  may  be  given  in  evidence 
against  all:  they  are  partners  for  a  bad  purpose,  and  may  be  con- 
sidered as  mutual  agents  for  each  other.  But  a  community  of  pur- 
pose between  them  must  be  proved,  before  evidence  can  be  received 
of  the  acts  and  admissions  of  one  against  the  others.'' 

Where  the  suit  is  against  two  or  more  persons  on  a  joint  contract, 
the  admissions  of  one  of  the  defendants  in  relation  to  the  subject 
matter  of  the  contract  made  at  the  time  of,  and  within  the  scope  of 
the  transaction,  are,  in  general,  evidence  against  all,' 

Sec.  VII.  —  admissions  by  criminals. 

The  confessions  of  a  party,  charged  with  a  crime,  cannot  be  re- 
ceived in  evidence-against  him,  unless  they  are  voluntary.  If  the 
defendant  has  been  influenced  by  any  threat,  or  promise,  to  make  a 
confession,  it  cannot  be  received  in  evidence.  To  say  that  it  will 
be  better  for  him  if  he  confesses,  or  worse,  if  he  does  not,  may  be 
sufficient  to  exclude  all  subsequent  declarations  by  the  prisoner,  if 
such  remarks  were  made  under  circumstances  which  induce  a  belief 
that  they  had  an  influence  on  his  mind.  And  where  a  confession 
has  once  been  induced  by  such  means,  all  admissions  afterwards 
of  the  same,  or  of  the  like  facts,  must  be  rejected,  for  they  have 

Hi)  2  Stra.  109  I,  and  sec  C  T.  R.  680.  (k)  Stark.  Ev.  47. 

(i)  Wright's  Ucp.  595  ;  4  Wend.  Rep.  465  ;  (I)  17  Mass.  Rep.  222. 

1  Esp.  Rep.  142. 


(4)  See  the  preceding'  section.  Admissions  by  Agents. 

(5)  As  to  ucknowlcdgmcnt  of  debts  after  tlic  puitner.ship  is  dissolved,  sec  Part 
2,  Title  29,  ^4. 

10 


74  OF  ADMISSIONS.  [Frt.  1,  Ch.  13, 

resulted  from  the  same  iiiflucnce."'(G)     Admissions  made  by  one, 
after  the  transaction,  cannot  be  received  against  the  others. 


Sec.  VITI.  —  now  admission's  must  be  coxstrued. 


The  Avholc  of  the  admission  given  in  evidence  against  a  party, 
must  be  ttd^en  together,  to  show  clearly  Ids  meaning;  but  what 
credit  is  to  be  given  to  the  whole,  or  to  a  part,  is  a  ([ucstion  for  the 
consideration  of  the  justice,  with  Whom,  perhaps,  the  assertions  of 
the  party  in  his  own  favor,  may,  under  some  circumstances,  have 
but  little  weight.  If,  however,  a  party  admit  that  he  did  owe  a  debt, 
and  at  the  same  time  say  that  he  paid  it,  the  admission  proves  the 
payment  as  well  as  the  debt."  So  when  an  account  of  the  defen- 
dant, which  had  been  delivered  to  the  plaintitF,  is  pioduccd  on  the 
trial  by  the  plaintiff,  to  establisii  his  own  demand,  it  is  evidence  as 
well  to  prove  the  debtor  as  the  credit  side  of  the  account."  So, 
where  suit  was  brought  on  a  bill  of  exchange  of  £200,  and  the 
plaintift',  in  order  to  prove  a  waver  of  notice  of  non-payment  by 
the  defendant,  gave  in  evidence  his  admission:  "I  do  not  mean  to 
insist  upon  want  of  notice,  but  I  am  only  bound  to  pay  £70  —  1  will 
call  to-morrow  morning,  and  see  that  all  is  arranged  satisfactorily ;" 
it  was  held  that  the  plaintiff  ought  to  recover  but  the  £70.p  So, 
where  the  defendant  in  an  action  for  money,  Vv'hich  had  been  re- 
ceived from  the  plaintiff,  said,  that  he  received  the  money,  but  that 
it  was  his  due,  the  whole  admission  was  taken  together,  and  was 
considered  as  a  denial  of  the  plaintift'^s  demand.^  So  in  trespass 
for  killing  the  plaintiff's  dog,  the  defendant's  confession  that  he 
killed  the  dog,  which  assaulted  him  on  the  highway,  was  taken  to- 
gether, and  held  to  be  a  justification  of  the  killing.'' 


Sec.  IX.  —  ADMISSIONS  which  cannot  be  given  in  evidence. 

It  has  already  been  stated  that  the  admissions  of  other  persons 
than  parties  to  the  suit,  cannot,  in  general,  be  received  in  evi- 
dence.(7) 

When  an  admission  is  made  upon  a  proposition  to  compromise, 
and  for  the  purpose  of  buying  peace,  or  a  desire  to  avoid  a  suit,  it 
cannot  be  given  in  evidence  against  the  party  making  it.  But  if 
the  admission  of  a  fact,  or  right,  be  made  without  reference  to,  and 

(m)  stark.  Ev.  49.  (p)  12  Enir.  C.  L.  Rep.  267. 

(n)  Saund.  PI.  and  Ev.  38  ;  15  Johns.  Rep.  229.  (q)  3  Johns.  Rep.  427. 

(o)  Taunt.  245;  1  Eng.  C.  L.  Rep.  92;  15  Johns.  (r)  10  Johns.  Rep.  365;  but  see  7  Ohio  Rep. 
Rep.  424.  Prt.  2,  144. 


(6)  An  instance  is  mentioned  in  the  English  State  Trials,  where  two  brothers 
were  executed  upon  a  supposed  confession,  althougli  botli  were  innocent. 

(7)  See  page  68. 


§8,  9.]  OF   ADMISSIONS,  75 

independent  of  the  proposition  to  compromise,  although  made  at 
the  same  time  when  the  compromise  was  talked  of,  it  will  be  receiv- 
ed in  evidence.'  The  admission,  to  render  it  incompetent  testimo- 
ny, must  be  a  concession,  made  not  from  the  consciousness  of  the 
truth  of  the  claim,  but  for  the  purpose  of  buying  peace/  So  an 
admission  made  before  arbitrators,  may  be  used  as  evidence  on  the 
trial  of  another  cause,  and  is  not  to  be  considered  as  an  admission 
made  with  a  view  to  compromise/  Attorneys  and  counselors  at 
law,  are  the  only  persons  who  cannot  be  compelled  to  reveal  com- 
munications made  to  them  in  confidence.  But  matters  commu- 
nicated to  an  attorney,  not  in  his  professional  character,^''  or  after 
the  termination,  and  without  a  view  to  the  object  of  the  suit,  and 
when  the  character  or  duties,  of  an  attorney  are  not  called  into  ac- 
tion, must  be  disclosed.'^ 

(b)  16  Eng.  C.  L.  Rep.  94.  (w)  4  T.  R.  753  ;  Wrislit's  Rep.  136. 

(t)  1  Esp.  143  ;  1  M.  and  S.  446,  447.  (a)  4  T.  R.  431 ;  9  Enj.  C.  L.  Ken.  233, 

(v)  3  C.  and  P.  219  :  14  Enj.  C.  L.  Rep.  278. 


CHAPTER  XIV. 


PROOF  BY  WRITINGS. 


SECTION    I.        EXPLANATION    OF    THE   RULE  AS  TO  AVHAT    IS    THE    BEST    EVI- 
DENCE, AND  wiip;n  it  must  be  produced, 

n.  IN  WHAT  CASES  A  AVRITTEN  INSTRUMENT  MUST  BE  PRO!  UCET> 
ON  THE  TRIAL,  AND  WHEN  ITS  CONTENTS  MAY  BE  PROVED 
BY  COPY,  OR  BY  PAROL,  AVITIIOUT  ITS  PRODUCTION;  AND 
HEREIN, 

(A)   When  the  instrument  is  lost. 
{B)   When  it  is  in  tJie  possession  of  the  opposite  par- 
ty^ and  herein.,  of  the  notice  to  produce  it. 

(C)  When  the  instrument  relates  to  land.^  and  is  re- 

corded, 

(D)  When  it  is  a  public  record. 

(E)  When  it  consists  of  a  receip)t.^  or  account  book., 

or  private  memorandum. 

III.  IN   WHAT  CASES  THE   EXECUTION  OF  A  WRITTEN    INSTRUMENT 

MUST  BE  PROVED  BEFORE  IT  CAN  BE  RECEIVED  AS  EVHENCE; 
AND  WHEN  IT  MAY  BE  RECEIVED  WITHOUT  PROOF  OF  ITS 
EXECUTION,  AND  HEREIN, 

{A)  When  the  law  permits  a  certified  copy  to  be  re- 
ceived in  evidence. 

(/?)  When  the  opposite  party  produces  the  instru- 
ment^ and  claims  an  interest  xuidcr  it. 

(C)  When  suit  is  brought  upon  a  deed.,  promissory 
note.,  or  bill  of  exchange.,  and  herein^  of  the 
affidavit  and  plea  in  such  case. 

IV.  HOW    THE    EXECUTION   OF  A  WRITTEN    INSTRUMENT    MUST    BE 

PROVED. 

V.  OF  PAROL,  OR  VERBAL  EVIDENCE  TO  CONTRADICT    OR    VARY    A 

WRITTEN  INSTRUMENT, 


Sec    1. EXPLANATION    OF    THE    RULE    AS    TO    WHAT  IS  THE  BEST  EVI- 

EVIDENCE,  AND  WHEN  IT  MUST   BE  PRODUCED. 

The  great  and  leadinoj  rule  in  relation  to  evidence  by  writings  is 
this:  That  the  best  evidence  must  be  given  of  which  the  nature  of 
the  thing  is  capable. 


[Pr^.  1,  CA.  14,  §1,2.]  PROOF    BY    WRITINGS.  77 

The  true  meaning  of  this  rule  is  not,  that  courts  require  ths 
strongest,  possible  assurance  of  the  truth  of  the  matter  in  question;  but 
when  it  is  in  the  power  of  the  party  to  prove  a  fact  by  two  differ- 
ent species  of  evidence,  one  of  which  would  be  of  a  better,  higher, 
and  more  certain  nature  than  the  other,  the  law  requires  him  to 
produce  the  higher  and  better  evidence.  If  it  be  not  in  the  power 
of  the  party  to  produce  the  higher  and  better  evidence,  then,  upon 
his  showing  his  inability  so  to  do,  the  law  permits  him  to  prove  the 
fact  by  evidence  of  an  inferior  character. 

It  will  be  found  that  this  rule  is  not  only  the  source  of  most  of 
the  principles  relating  to  the  admission  and  rejection  of  testimony, 
but  is  the  ground-work  of  most  of  the  arguments  of  counsel  in  our 
courts  while  witnesses  are  on  the  stand.  It  has  been  placed  at  the 
head  of  this  chapter,  because  the  rules  in  relation  to  proof  by  writ- 
ten instruments,  will  fully  illustrate  its  practical  application. 


.SfX.    II. IN  WHAT  CASES  A  WRITTEN  INSTRUMENT  MUST  BE  PRODUCED 

ON  THE  TRIAL,  AND  WHEN  ITS  CONTENTS  MAT  BE  PROVED 
BY  COPY,  OR  BY  PAROL,  WITHOUT  ITS  PRODUCTION. 


If  a  witness  be  asked  a  question  in  relation  to  a  written  instru- 
ment, or  its  contents,  by  one  party,  and  the  opposite  party  make 
no  objection,  the  testimony  may  be  received.  But  it  is  a  general 
rule,  that  whenever  a  written  instrument  is  necessary  to  sustain 
directly  or  remotely  the  action  or  the  defence,  the  party  who  de- 
sires to  make  use  of  its  contents  on  the  trial  must  either  produce 
the  instrument,  or  cause  it  to  be  produced,  and  cannot  give  parol 
or  verbal  testimony  of  its  contents,  if  the  opposite  party  object  to 
that  species  of  evidence;  for  the  instrument  itself  is  better,  higher, 
and  more  certain  evidence  of  its  contents  than  the  memory  of  wit- 
nesses or  a  supposed  copy.  Thus:  a  writ  or  a  bond,  lease  or  other 
specialty,  or  a  promissory  note,  contract  or  other  writing,  even  if 
in  the  possession  of  a  third  person,  must  be  produced,  and  no  evi- 
dence can  be  received  of  its  contents,  if  objection  be  made  to  such 
proof  So  inflexible  in  this  rule,  that  proof  of  the  admissions  of  a 
party  made  before  the  trial,  as  to  the  contents  of  an  instrument, 
cannot  be  given  in  evidence  against  him  for  the  purpose  of  prov- 
ing the  contents  of  such  instrument,  if  he  object  thereto:*  the 
instrument  itself  is  higlier  and  better  evidence.(l)  There  are, 
however,  various  exceptions  to  this  rule,  which  will  be  now  exam- 
ined. 

(«)  11  Eng.  C.  L.  Rep.  468.  471. 


(1)  See  furtlier  as  to  such  admissions,  png-e  72. 


PROOF    BY    VVRITINOS.  [^Prt.  1,  Cfl.  14, 


EXCEPTION    FIRST. 


(^4)   IV/icii  the  instrument  is  lost. 

If  an  instrument  has  been  lost,  by  time  or  accident,  upon  proof 
of  such  loss  and  the  execution  of  the  instrument,  its  contents  may 
be  proved  by  the  production  of  a  copy,  ajid  if  there  be  no  copy, 
then  by  parol  or  verbal  testimony  of  its  contents.  It  must,  in  gen- 
eral, be  first  shown,  in  order  to  establish  the  loss,  that  diligent 
search  has  been  made  in  those  quarters  where  the  paper  was  likely 
to  be  procured.  The  loss  and  search  for  the  paper  may  be  proved 
by  the  party  to  the  suit  wdio  desires  to  make  use  of  it  on  the 
trial,  but  he  cannot  be  permitted  to  prove  either  its  contents  or 
execution. 


EXCEPTION   SECOND. 


{B)   JVhen  the  insti-iiment  is  in  the  possession  of  the  opposite  par'ty^ 
and  herein.,  of  the  notice  to  produce  it. 

When  a  party  to  a  suit  wishes  to  make  use  of  a  paper  on  the  trial, 
which  is  in  possession  of  the  opposite  party,  he  may  be  permitted 
to  prove  its  contents  by  witnesses,  if  he  has  given  such  party  pre- 
vious notice  to  produce  it  on  the  trial,  but  not  otherwise.''  When, 
however,  from  the  nature  of  the  suit,  the  party  in  possession  of  the 
instrument  has  notice  that  he  is  to  be  charged  with  the  possession 
of  it,  as  in  an  actionof  trover  to  recover  damages  for  the  wrongful 
withholding  the  instrument,  a  notice  to  produce  it  is  unnecessary, 
and  its  coiitents  may  be  proved  by  witnesses.*^ 

In  order  to  render  the  notice  to  produce  the  instrument  available, 
the  party  ought  to  satisfy  the  justice  that  it  is  in  the  hands  or  under 
the  control  of  the  opposite  party.  When  the  instrument  belongs 
to  a  party,  slight  evidence  is  sufficient  to  raise  a  presumption  that 
it  is  in  his  possession.*^ 

The  notice  to  produce  the  instrument  ought  to  be  given  a  rea- 
sonable time  before  trial  to  the  opposite  party,  his  agent  or  at- 
torney.^ 

The  notice,  though  in  writing,  and  notices  generally,  which  the 
statute  does  not  require  to  be  in  writing,  may  be  proved  by  parol 
or  verbal  testimony,  without  the  production  of  the  original.^'  And 
when  the  statute  requires  a  notice  to  be  in  writing,  a  copy  compar- 
ed by  the  witness  w  ith  the  one  served,  line  by  line,  or  compared 
while  the  other  was  read  to  him,  will  be  received  in  evidence:  they 
are  considered  as  duplicate  originals.'' 

(b)  11  Eng.  C.  L.  Rep.  503.  (e^  2  Eng.  C.  L.  Rep.  391  ;  3  T.  R.  306. 

(c)  13  Id.  203;  13  Joting,  Rep.  92;  171(1.295.     (g)  9  Jolins.  Rep.  139;  1  Esp.  455;  4  Id.  203- 

(d)  3  Camp.  502.  (li)  7  Enj.  C.  L.  Rep.  440. 


§2,(A),(B),(C),(D).]  PKOOF    BY    WRITINGS,  79 

EXCEPTION  THIRD. 

(C)  When  the  instrument  relates  to  land^  and  is  recorded. 

When  a  party  produces  a  copy  of  any  deed,  patent,^  mortgage, 
or  other  instrument  of  writing,  conveying,  or  affecting  in  law,  any 
lands,  tenements  or  hereditaments,  which  is  certified  by  the  county 
recorder,  under  his  official  seal,  to  be  copied  from  the  records  of 
deeds  in  his  otlice,  such  copy  may  be  received  in  evidence  in  all 
cases,  even  if  the  person  who  produces  it  has  the  original  of  the 
copy  in  his  possession.' 

EXCEPTION    FOURTH. 

(D)  When  the  instrument  is  a  public  record. 

In  all  cases  where  the  original  record  is  of  a  public  nature,  and 
admissible  in  evidence,  a  copy  proved  by  a  witness  to  have  been 
compared  by  him  with  the  original,  or  compared  while  another 
read  the  original,  is  also  admissible.''  Copies  thus  examined  and 
sworn  to,  of  the  poll  book  of  an  election,'  or  of  aregister  of  mar- 
riages, and  of  record  books,  and  other  papers,  officially  on  file  and 
belonging  to  clerks  of  school  districts,  township  clerks,  &:c.,  are  as 
good  evidence  as  the  originals."  There  must,  in  such  cases,  when 
the  record  is  from  a  foreign  or  sister  State,  be  proof  that  the  record 
copied  was  kept  under  the  authority  of  some  statute  or  law." 

In  many  cases,  however,  copies  of  such  records  are  admitted,  if 
certified  by  the  person  in  whose  authority  the  law  has  placed  them. 
A  copy  of  the  records  of  the  courts  of  this  State,  attested  by  the 
clerk,  under  the  seal  of  the  court,  is  admissible;"  and  so  are  tran- 
scripts, certified  by  any  justice  of  the  peace  of  this  State,  of  pro- 
ceedings had  before  him  during  his  continuance  in  office,  whether 
certified  during  his  continuance  in  office  or  after  the  expiration  of 
the  same.i'  So,  a  transcript  from  the  docket  of  an  absent  justice, 
certified  by  the  justice  having  possession  of  the  docket,  is  admissible 
in  evidence.^ 

In  relation  to  records  or  judicial  proceedings  of  the  courts  of 
other  States  of  the  United  States  and  its  territories,  a  copy  is  ad- 
mitted in  evidence,  attested  by  the  clerk,  under  the  seal  of  the 
court,  if  there  be  a  seal,  together  with  a  certificate  of  the  judge, 
chief  justice,  or  presiding  magistrate,  (as  the  case  may  be.)  that  the 
attestation  is  in  due  form.'' 

If  the  court  whose  record  is  certified,  have  no  seal,  this  fact 
should  appear  either  in  the  certificate  of  the  clerk  or  in  that  of  the 
judge.' 

(h)  Stat.  271,  $22.  (o)  Wilcox's  Praclicc,  78. 

(i)  Stat.  2*57,  $10;  6  Ohio  nep.32.  (p)  Stat.  507,  $5. 

(kj  3  Salk.  154.  (q)  Id.  172,  $9. 

(I)  Willea,  424.  (r^  Stat.  56,  57,  53. 

(m)  B.  S.  V.  247.  f%)  \  I'ct.  Rep.  352- 
(n)  3  Oliio  Ucp.  3C8. 


80  PROOF    BY    WUITINGS.  [P/t.  1,  Ck.  14, 

In  relation  however  to  trnnscripts  iVoni  the  docket  of  justices  ol 
other  States,  the  rule  is  somewhat  different.  Tlie  certificate  of  a 
clerk  or  prothonotary  of  the  court  of  a  sister  State,  of  the  official 
character  of  a  justice  of  the  peace  in  such  State,  is  receivahle  licrc 
to  authenticate  the  transcript  of  a  judgment  rendered  by  such  jus- 
tice.* 

When  a  transcript  of  a  justice  is  certified  by  him,  there  must,  in 
general,  if  the  oi)j)osite  ])arty  require  it,  be  ]iroof  of  his  being  a  jus- 
tice, before  the  transcript  can  be  received  in  evidence. (2)  But 
when  the  cetificate  of  the  clerk  or  })rothonotary  is  annexed  to  the 
transcript,  in  the  manner  just  mentioned,  the  official  character  as 
well  of  the  justice  as  the  clerk  or  prothonotary  is  proved  by  the 
certificate  itself.  So  when  the  copy  of  a  record  of  a  sister  State 
or  Territory  is  duly  certified,  it  is  not  necessary  for  the  party  pro- 
ducing it  to  prove  the  official  character  of  the  officers  who  attest  or 
authenticate  it:  their  certificates  arc  themselves  evidence  of  their 
official  character.  So,  the  copies  of  records  of  the  courts  of  this 
State  are  received  in  evidence,  if  certified  by  the  proper  clerk,  un- 
der the  seal  of  the  court,  without  any  proof  being  retiuired  of  the 
official  character  of  the  person  who  has  signed  them  as  clerk. 


EXCEPTION   FIFTH. 

(jE')   W/ien  the  instrument  is  a  receijjt^  or  account  hooJc^  or  jtrivati 
memorandum. 

A  party  may  prove  a  payment,  by  witnesses,  although  he  has  a 
receipt  and  does  not  produce  it." 

So,  a  party  may  prove  the  items  of  his  account  without  produ- 
cing his  account  book;  but  the  book  must  be  produced  to  enable  the 
party  himself  to  testify.(3) 

A  memorandum  of  an  event  or  foct  made  by  a  witness  or  party 
merely  to  refresh  his  own  memoiy,  can  neither  be  received  as  evi- 
dence of  the  event  or  fact,  nor  is  it  necessary  to  produce  it. 


Sec.    III. IN  WHAT  CASES  THE  EXECUTION  OF  A  WRITTEN  INSTRUMENT 

MUST  BE  PROVED  BEFORE  IT  CAN  BE  RECEIVED  AS  EVI- 
DENCE; AND  WHEN  IT  MAY  BE  RECEIVED  WITHOUT  PROOF 
OF  ITS  EXECUTION. 

Another  rule  in  relation  to  proof  by  written  instruments  is,  that 
they  cannot  be  admitted  in  evidence,  unless  their  execution  is  prov- 
ed, which  is  in  general  done  by  proof  of  the  hand  writing  of  tiie 
person  w^ho  signed  them. 

(t)     Wright's  Rep.  127.  (v)  Ros.  Ev.  27;  7  Cow.  Rep.  334;  4E9p.213;  12  Johns. 

Rep.  531;  Wright's  Rep.  240. 

(2)  As  to  what  proof  is  required  in  such  case,  see  pag-e  68. 

(3)  See  further  in  relation  to  account  books,  Part.  2,  Title  2. 


^2,  (E),  3,(A),(B),(C).]  PROOF    BY    WRITINGS,  81 

To  this  rule  there  are,  among  others,  the  following  exceptions: 


EXCEPTION    FIEST. 

(A)  When  a  certified  copii  is  hjj  laiv  received  in  evidence^{A)  the  ex- 
ecution of  the  original  need  not  be  proved. 

EXCEPTION    SECOND. 

{B)  When  a  party  producing  an  instrument  under  a  notice  to  pro- 
duce^ claims  a  beneficial  interest  under  it^  it  is  not  necessary  for  the 
party  calling  for  the  instrument,  to  prove  its  execution.'"  But  it  is 
otherwise  when  the  party  producing  the  instrument  claims  no  in- 
terest under  it,''  for  then  its  execution  must  be  proved  as  in  other 
cases. 

EXCEPTION  THIRD. 

(C)  When  suit  is  brought  upon  a  deed^  piromissory  note^  or  bill  of 
exchange^  and  herein,  of  the  affidavit  and  plea  in  such 
case. 

If  a  suit  be  brought  upon  an  instrument,  under  seal,  against  the 
maker  of  it,  or  against  his  assignee  or  other  person,  or  if  a  suit  be 
brought  upon  a  promissory  note,  or  bill  of  exchange,  against  the 
maker  of  it,  or  against  the  indorser,  or  other  person,  and  the  parties 
proceed  to  trial  without  an  affidavit  hied  by  the  defendant,  as  here- 
inafter mentioned,(5)  the  execution  of  the  instrument  or  indorsement, 
need  not  be  proved  by  the  plaintiff.'' 

It  will  be  observed  that  the  cases  above  mentioned  are  those  only 
where  the  suit  is  brought  upon  these  instruments.  It  often  happens 
that  the  parties  offer  in  evidence  notes  and  other  instruments  of 
writing  upon  which  the  suit  is  not  brought.  In  such  case  they  must 
prove  the  execution  of  the  instruments  in  the  manner  hereafter 
stated.*^ 

It  will  also  be  observed  that  I  have  only  mentioned  instruments 
under  seal,  notes  and  bills  of  exchange.  All  other  contracts  and 
writings  must  be  proved  in  the  manner  hereafter  stated,  unless  they 
come  within  some  of  the  exceptions  to  the  general  rule,  heretofore 
mentioned  in  this  chapter. 

It  has  already  been  stated  that  the  execution  of  these  instruments 
must  ])e  proved  if  an  affidavit  is  interposed  by  the  defendant.  This 
affidavit  must  be  filed  with  the  justice  by  the  defendant  before  the 
cause  proceeds  to  trial. 

(w)  3  Taunt.  62;  7  Eng.  C.  L.  Uep.  382;  12.  Id.  327;  13  Id.  99.     (h)  Stat.  325. 

(a)  8  East,  548.  (c)  Wright's  Kep.  595.  690. 

(4)  See  pages  79  and  80. 

(5)  See  next  pug'e. 

11 


82  PROOF    BY    AVKITIXGS.  [Prt.'i^C/l.    14, 

Before  the  defendant  files  his  affidavit  denying  the  execution  of 
the  instrument,  the  justice  should  enter  upon  his  docket  the  defen- 
dant's plea,  so  as  to  lay  the  proper  foundation  for  a  prosecution  for 
perjury,  in  case  a  false  aHiclavit  he  made. 

If  a  suit  be  brought  upon  a  promissory  note,  not  under  seal,  or 
upon  a  bill  of  exchange,  the  plea  mny  be  entered  on  the  docket 
(immediately  after  the  entry  of  the  return  of  the  summons  or  capias,) 
in  the  forih  following: 

Jime  5,  1  850.  Thereupon  the  defendant  now  in  court,  for  plea, 
says  that  he  did  not  promise,  as  the  plaintilf  in  the  premises  com- 
plains against  him,  etc.;  and  filed  his  affidavit  accordingly. 


If  a  suit  be  brought  upon  a  bond,  contract,  deed,  or  other  instru- 
ment under  seal,  the  entry  of  the  plea  may  be  thus: 

Ju7ie  3,    1845.     And    thereupon  the  defendant  comes,  and  for 
plea  says,  that  the  instrument  upon  which  this  suit  is  brought  is  not 

the  deed  of  A B ,  [or  if  the  instrument  purports  to  be  made 

by  the  defeadant^  say^  is  not  his  deed,]  and  filed  an  affidavit  of  the 
truth  of  the  plea. 


The  affidavit  may  be  in  the  following  form : 

A T) -\ 

'  '         Suit  pending  before  G H ,  j.  p.  on 


vs. 


D- 


note,  [bond,  or  contract,  as  the  fact  may  Z>e.] 


The  State  of  Ohio, county, township,  ss. 

The  said  C D ,  makes  oath  that  his  plea,  entered  on  the 

docket  of  G H ,  in  the  above  case,  is  true  in  substance  and 

in  fact;  [Jicre  add,  if  the  suit  is  upon  an  instrument  irhich  purports 
to  have  been  made  by  the  defendant,  '-and  that  he  did  not  make  the 
instrument  upon  which  the  above  suit  is  founded."'  But  if  the  suit 
is  upon  an  instrument  which  j^ui'ports  to  have  been  made  by  a  person 
other  than  the  defendant,  then  say,  "and  that  the  said  instrument, 
was  not  made,  [or  subscribed,  or  indorsed,]  as  it  purports  to  have 

been,  by  C D ,"  stating  the  names  of  the  persons  who  appear 

to  have  signed  or  indorsed  the  instrument,  and  whose  signatures  are 

denied,  and  then  add]  as  he,  said  C D ,  verily  believes. 

[Signed.:]  ^ 

Subscribed  and  sworn  to  before  me,  and  filed  in  the  above  cause, 

June  3,  1845. 

G H ,  J.  p. 


§3,  (C),  4.]  PROOF    BY    WRITINGS.  83 

When  a  plea  is  entered  and  affidavit  filed,  the  justice,  in  entering 
his  judgment,  should  state  in  the  docket  the  fact,  whether  he  finds 
the  plea  to  be  true  or  not;  thus: 

I  do  find  that  the  defendant  did  [or  did  not]  promise,  etc.;  or^  I 

do  find  that  the  said  instrument  is  [or  is  not]  the  deed  of  said  C 

D ,  etc. 

The  judgment  is  then  entered  as  in  other  cases. 


Sec.    IV. HOW    THE    EXECUTION  OF  WRITTEN    INSTRUMENTS  MUST  BE 

PROVED. 


The  execution  of  all  instruments  of  writing,  whether  under  seal 
or  not,  which  are  offered  in  evidence  by  one  party,  and  their  exe- 
cution denied  by  the  other,  must,  in  general,  be  proved,  unless  they 
are  such  as  come  within  the  rules  which  have  been  laid  down  in  the 
preceding  sections  of  this  chapter.  If  their  execution  be  not  proved 
in  the  manner  hereinafter  stated,  the  justice  must  not,  if  objected 
to  on  that  account,  admit  them  as  evidence. 

If  there  be  no  attesting  witness  to  the  instrument,  the  hand  writ- 
ing of  the  party  to  it  may  be  proved  by  a  witness  who  has  a  know- 
ledge of  it,  from  having  seen  him  write,  or  has  become  acquainted 
with  his  hand  writing  by  a  correspondence  with  him,  upon  which 
the  witness  has  acted.'' 

The  execution  of  all  written  instruments,  subscribed  by  an  attest- 
ing witness,  must  in  general  be  proved  by  such  witness.  Even  the 
confession  of  the  party,  that  he  executed  the  instrument,  will  not 
be  received,  unless  the  absence  of  the  subscribing  witness  is  satisfac- 
torily accounted  for.''  When  the  attesting  witness  is  dead,  or  blind, 
or  insane,  or  by  reason  of  the  commission  of  crime,  is  incompetent, 
or  is  absent  from  the  county,  the  execution  of  the  instrument  may 
be  proved  by  evidence  of  the  hand  writing  of  the  attesting  witness, 
without  proof  of  the  hand  writing  of  the  maker  of  the  instrument;'' 
or  by  proof  of  the  hand  writing  of  the  maker  of  the  instrument, 
where  proof  of  the  hand  writing  of  the  attesting  witnesses  cannot 
be  conveniently  procured.''(6)     Where  the  attesting  witness  was 

(a)  4  Esp.  37  ;  12  Eng.  C.  L.  Rep.  (i.  (c)  Roscoc's  Ev.  65. 

(b)  3  Oliio  Rep.  46.  (d)  3  Oliio  Rep.  46  ;  2  Ohio  Rep.  56. 


(6)  Any  errors  In  the  ubove  remarks  may  be  cori-ectcd  by  the  following'  opinion 
of  tlie  Supreme  Court,  in  the  case  of  Clark  vs.  Boi/d,  2  Ohio  Hep.  56.  "  "Wlien 
the  subscribing-  witness  is  dead,  or  absent,  tiic  court  iiave  usually  admitted  proof 
of  the  hand  writing-  of  the  ohlig-or,  but  it  does  not  follow,  that  this  proof  must  be 
required  in  addition  to  proof  of  the  hand  writing-  of  the  witness,  nor  is  the  exclu- 
sion (jf  proof  of  tlie  hand  writing  of  the  witness,  a  necessary  consequence  of  ad- 
milt  mg  the  one,  where  the  other  cannot  lie  obtained.  Under  proper  circumstances 
both  modes  of  proof  may  be  admissible,  and  either  may  be  suUicient." 


84  PROOF    BY     WRITINGS.  [P/7.  1,    Ck.  14, 

incompetent  at  the  time  of  the  nttestation,  IVom  interest,  infamy, 
or  any  other  cause,  or  where  a  fictitious  person  has  been  inserted 
as  a  witness,  or  where  the  attestation  was  made  without  the  iaiow- 
ledge  or  consent  of  the  parties,  it  is  the  same  in  effect,  as  if  there 
had  been  no  subscribing  witness,  and  it  will  be  necessary  to  prove 
the  hand  writing  of  the  party  who  executed  the  instrument.''  But 
if  the  party,  knowing  the  witness  to  be  interested,  requests  him 
to  attest  the  instrument,  he  cannot  afterwards  object  to  his  compe- 
tency.^ 

When  the  witness  becomes  interested  after  the  attestation,  proof 
of  his  hand  writing  is  generally  received.'' 

When  an  attesting  witness  denies  his  signature,  other  witnesses 
may  be  called  to  prove  his  hand  wa'iting.' 

Knowledge  derived  from  a  comparison  of  hand  writings  merely, 
forms  no  evidence,  and  cannot  be  received.  A  person's  knowledge 
of  hand  writing,  is  not  unlike  his  knowledge  of  the  countenance  ^f 
one  whose  face  he  knows. 


Sec.    V, OF  parol  or  verbal    EVn)ENCE  to  CONTRAnCT  OR  VARY   A 

AVRITTEN  INSTRUMENT. 

If  parties  have  entered  into  a  contract  in  writing,  and  the  writ- 
ten contract  is  ditTerent  in  any  part  from  the  one  they  at  the  time 
intended  to  make,  verbal  or  parol  testimony,  cannot  be  received 
for  the  purpose  of  proving  a  mistake,  or  the  real  intention  of  the 
parties.  They  have  reduced  their  contract  to  writing,  and  by  it 
they  must  be  bound. ""(y)  If  upon  reading  the  instrument,  the  jus- 
tice is  at  a  loss  how  to  construe  it,  on  account  of  the  uncertainty 
and  ambiguity  of  its  terms,  this  will  not  justify  him  in  receiving 
parol  testimony  of  the  intention  of  the  parties,  so  as  to  clear  up  the 
uncertainties  or  ambiguities  v.'hich  are  .apparent  on  the  face  of  it. 
But  there  is  a  kind  of  uncertainty  or  ambiguity  not  apparent  upon 
the  face  of  a  pnper,  but  arising  from  fncts  out  of  the  instrument, 
which  may  be  explained  by  parol  testimony.  Thus,  if  a  person 
agrees  to  build  a  house  for  A,  upon  his  farm,  called  Blackacre,  and 
it  is  proved  by  parol,  that  A  had  two  farms  called  Blackacre,  hero 
would  be  a  fact  out  of  the  instrument,  which  would  render  what 
was  before  clear  on  the  face  of  the  instrument,  ambiguous  and  un- 
certain; and  it  being  an  ambiguity  not  apparent  upon,  but  indepen- 
dent of  the  instrument,  it  may  be  proved  which  farm  called  Black- 

(c)  5T.  R.371.  (k)  1  Olio  Rpp.  ISft;  4  Id.  34G ;  6  1(1.247;  Wriglit'§ 

(K)  3  Camp.  196.  liep.  327.  597.  602;  4  Kawle  Rep.  138  ;      \i 

(h)  1  Stra.  34.  Peterd.  10»,  note. 

(I)  2  Oliio  Rep.  13. 

p — — 

(7)  If  a  word  has  acquired  a  particular  meaning  in  a  certain  trade,  tliat  mean- 
ing' will  be  applied  to  it  in  construing-  a  written  contract  respecting'  the  trade,  and 
evidence  may  be  received  in  relation  to  its  meaning";  but  it  must  be  distinctly 
proved  that  the  word  has  acquired  a  professional  or  technical  meaning-.  12  Eng. 
C.  L.  Hep.  245.      Wright's  Hep.  143. 


^5.]  PROOF    BY    WRITINGS.  85 

acre  was  intended  by  tlie  parties  to  the  contract.  So,  for  the  same 
reason,  if  a  deed  be  made  to  one  by  n;ime,  and  there  are  two  of  the 
same  nnme,  it  may  he  explained  to  show  wlio  was  intended.'  An 
ambii^uity,  then,  which  appears  upon  the  face  of  the  writing,  cnnnot 
be  explained  by  parol  testimony,  but  must  be  explained  hy  the  in- 
strument itself,  taking  into  view  all  its  parts.  If  it  be  not  thus  ca- 
pable of  any  explanation,  it  is  void  for  uncertainty.  An  ambiguity 
however,  whicli  does  not  appear  upon  the  face  of  the  instrument, 
but  is  made  to  appear  by  connecting /.'ffro/  testimony  with  some  fact 
Inferred  to  in  the  instrument^  may  be  explained  by  parol  testimony; 
the  evidence  to  clear  up  the  ambiguity,  being  of  the  same  nature 
with  that  which  made  the  ambiguity  appear. 

There  may  be  certain  facts  in  relation  to  an  instrument,  which 
may  be  proved  by  parol,  because  they  do  not  contradict  nor  vary 
the  instrument.  Thus,  when  no  consideration  is  mentioned  in  a 
deed,  a  consideration  may  be  proved  by  parol. (8)  And,  as  an  in- 
strument takes  effect,  not  at  its  date,  but  at  the  time  it  is  delivered; 
a  party  may  prove  when  it  was  delivered,""  or  that  it  never  was 
delivered,  or  that  it  was  not  intended  to  be  delivered.  And  for  the 
same  reason,  if  a  contract  in  writing,  or  under  seal,  or  by  parol,  be 
made,  and  aff^ricards  the  parties  agree  verbally,  or  otherwise,  to 
enlarge  the  time  for  its  performance,  or  to  change  its  terms,  or  to 
correct  a  mistake,  such  subsequent  agreement  will  be  binding,"  and 
the  parties  should  in  general  sue  upon  it,  and  not  upon  the  original 
contract.  An  agreement,  however,  under  seal,  cannot  be  revoked 
or  discliarged^  hj  a  verbal  agreement.  Executory  contracts,  in  wri- 
ting, but  not  under  seal,  may  be  discharged  by  a  subsequent  parol 
agreement;  but  after  breach  they  cannot,  it  is  said,  be  discharged, 
except  by  payment,  or  release  under  seal,  or  other  sealed  instru- 
ment, or  by  an  accord  and  satisfaction."  If  there  be  a  written 
agreement  to  do  an  act,  or  pay  money  at  a  certain  time,  parol  proof 
cannot  be  received  to  show  that  when  the  contract  was  made.,  it  was 
intended  that  the  act  should  be  done,  or  money  paid,  at  a  different 
time,  or  in  a  different  manner,  for  this,  as  we  have  already  seen, 
would  be  changing,  by  parol  testimony,  the  terms  and  operation  of 
the  original  agreement,  which  cannot  be  done.P 

These  rules  do  not  apply  to  a  common  receipt  for  money  paid, 
which  may  be  explained,  varied  or  contradicted  by  parol  evidence. i 

(I)  Wrialu's  Rep.  50.  (o)  9  Fnc.  C.  L.  Rep.  254  ;  Rul.  x\.  P.  152  ;  Roi. 

(in;   14  Johns.  Rep.210;  10  Kn^.  C.  L.  Rep.  F.v.  11,  12. 

3;3I  ;  Wri,'lii's  Kep.  [\,\.\.  (p)  8  Johns.  Kep.  146  ;  7  Mns=.  Rop.  SIR. 

(n)  3  Jol.tis.  Rop.  .',2!J;     1     M.   and    P.   21  ;  (q)   12  Johns.  Rpp.  5.U  ;  b  Ol  i<i  Rep.  tUl  ;  4  Id. 

Wik'lifs   Rep.    16<!;  9  Tick.  29y  ;  2  3J4;  Wright's  Rep.  240. 

Wend.  50". 


(R)  It  is  .settled  in  New  York,  and  is  probably  the  law  in  Ohio,  tliat  when  tlie 
.coiisidi ration  of  a  convejance  is  expressed  therein  to  have  been  j^aid  hy  tlie 
piantee,  parol  evidence  nriay  nevei'theless  be  admitted  to  show,  in  an  action  lor  tiie 
purchase  money,  that  it  had  not,  in  fact,  been  paid.  20  Johns.  Jirp.  3:;S.  IVrl^lil'x 
Rrp.  249.  'I'jiis  principle  seems  to  conflict  with  the  g-i  neral  rule,  that  a  [)arty 
cannot  contradict  or  falsify  what  he  has  admitted  under  seal. 


8G  PROOF    BY    WRITINGS.  [Prt.  1,   C/l.   14,  §5.] 

When  a  rcceijit  is  given,  or  a  settlement  is  made  between  parties, 
it  cnn  be  opened  nnd  corrected  by  proot"ol"  fV;iud  or  mistake/ 

The  statute  of  this  State  provides,  that  \vhen  a  sealed  or  other 
written  contract  for  the  payment  of  money,  or  the  delivery  of  pro- 
perty, is  given  in  evidence  by  either  party,  the  other  party  may 
prove  the  want  or  failure  of  consideration  in  the  whole  or  in  any 
part  thereof.'  Negotiable  instruments,  assigned  before  due,  and  in 
the  hands  of  a  bona  fide  assignee,  are  not  allcctcd  by  this  statute. (9) 

(r)  \Vrij;lit's  Rep.  7(54.  '(s)   St.it.  325. 

(9)  See  in  relation  to  the  rigbts  of  tbe  assignee  of  negotiuble  instruments.  Part 
2,  Title  31,  §14. 


CHAPTER  XV. 


DEPOSITIONS. 


SECTION  I,       BY  AND  BEFORE  'WHOM  FEPOSITIONS  MAY  BE  TAKEN. 

II.  OF  THE  NOTICE,   SUBPOENA  AND  ATTACHMENT,  AND  THE  FORMS 

THEREOF. 

III.  FORM  OF  OATH  TO  WITNESS,  AND  FORMS  OF  DEPOSITIONS,    CER- 

TIFICATES, ETC. 


Sec.    I. BY  AND  BEFORE  AVHOM  DEPOSITIONS  MAY  BE    TAKEN. 

When  the  testimony  of  any  person  is  necessary  in  any  civil  cause 
or  matter,  pending  before  a  justice  of  the  peace,  or  in  the  court  of 
common  pleas  or  supreme  court,  sitting  as  a  court  of  law  or  equi- 
ty, and  such  person  resides  out  of  the  county  where  such  cause  or 
matter  is  pending,  or  shall  intend  to  leave  the  county  before  the 
time  of  trial,  or  is  ancient  or  very  infirm,  the  deposition  of  such 
person  may  be  taken  before  any  justice,  or  judge  of  any  court  of 
the  United  States,  or  before  any  chancellor,  master  commissioner 
in  chancery,  justice  or  judge  of  any  supreme  or  superior  court, 
notary  public,  mayor  or  chief  magistrate  of  any  city  or  town  cor- 
porate, judge  of  any  county  court,  or  court  of  common  pleas,  or 
justice  of  the  peace  of  this  State,  or  of  any  of  the  United  States, 
or  any  district  or  territory  thereof;  such  officer  not  being  of  coun- 
sel or  attorney  to  either  of  the  parties,  or  otherwise  interested  in 
the  event  of  such  cause.* 


Sec.    II. OF    TPIE    NOTICE,    SUBPCENA     AND    ATTACHMENT,    AND    FORBIS 

THEREOF. 

Before  a  deposition  can  be  taken,  proper  notice  must  be  given  to 
the  adverse  party,  which  may  be  in  the  form  following, 

"*         ^  r     Common  Pleas,  or  Before  G H ,  .i.  p., 

Q jj I  county, .^* 

Depositions  will  be  taken  in  this  case,  by  the /^/c//?/ ////',  at ^^ 

in  the  town  of ,  county  of ,  and  State  of ^,  on  the 

day  of nexl^  between  .srr  A.  M.  and  nine  V.  M. 

Dated,  July  .5,  1850.  A B . 

Ci)  Slat.  321,  ?I. 


88  LKi'osiTioNs.  [Prf.  1,  CA.15, 

This  notice  must  be  served  on  the  adverse  party,  his  agent  or 
attorney  of  record,  or  left  at  liis  usual  place  of  abode,  at  such  time 
as  will  enable  the  adverse  party  to  attend  at  the  taking  of  the  depo- 
sitions, by  traveling  at  the  rate  of  twenty  miles  per  day,  Sundays 
excU)sive.^ 

When  the  parties  reside  less  than  twenty  miles  from  each  other, 
as  for  instance,  in  the  same  town,  the  notice  cannot  be  given  on 
the  day  the  depositions  are  taken,  but  must  be  given  at  least  the 
day  previous.'^  So,  if  the  parties  reside  twenty-one  miles  apart, 
two  days'  notice  must  be  given  at  least;  so  that  if  depositions  are 
to  be  taken  on  the  tiiird,  notice  must  be  served  on  the  Hrst.  In 
calculating  the  days,  the  day  of  service  is  included,  and  the  day  of 
taking  the  depositions  is  excluded.  Therelbre  if  two  days'  notice 
is  required,  and  depositions  are  to  be  taken  on  Wednesday,  notice 
must  be  served  on  Monday. 

Service  of  this  notice  maj'  be  made  by  any  disinterested  person, 
and  proof  of  such  service  may,  in  general,  be  required  before  the 
deposition  can  be  read. 

The  attendance  of  w^itnesses  before  the  officer,  may  be  enforced 
by  subpoena  and  attachment.*^ 


FORM    OF    SUBPCEXA    FOR    WITNESSES. 

The  State  of  Ohio, county,  ss. 

To  the  Sheriff(])  of  said  county,  greeting: 

You  are  hereby  commanded  to  summon  F W ,  to  be  and 

appear  before  me,  G H ,  a  justice  of  the  peace^  judge^  S^c. 

at  ,  on  the  day  of ,  at  nine  o'clock,  A.  M.,  then 

and  there  to  be  examined,  and  the  truth  to  speak,  in  behalf  of  the 

plaintiff,  in  a  certain  cause  pending  in  the  court  of ,  Avherein 

A B is  plaintiff,  and  C D defendant:  Hereof 

fail  not  under  the  penalty  of  the  law,  and  have  you  then  and  there 
this  writ. 

Given  under  mv  hand  and  seal,  this  —  day  of ,  A.  D.  18 — . 

G H ,  {Seal.) 


If  a  w  ituess,  without  any  reasonable  excuse,  neglects  or  refuses 
to  appear,  according  to  the  command  of  the  subpoena,  an  attach- 
ment may  issue.®  A  witness,  how^ever,  on  being  subpoenaed  may, 
as  in  other  cases,  demand  his  ^jr/y,  (the  fees  for  a  day.)  and  if  re- 
fused, he  need  not  attend;  and  so  from  day  to  day  he  may  require  his 
fees,  and  if  refused,  he  need  not  remain  at  his  own  expense,  and 
such  refusal  will  be  a  sufficient  answer  to  an  attachment.  But  if 
he  does  not  demand  his  fees,  the  omission  to  ])ay  them  \\\\\  not  ex- 

(b)  Stat.  321,  $2-  (d)  Stat.  322,  $6.  7. 

(c)  Wright's  Rep.  672.  (e)  Id.  322,  $7. 

(1)  The  subpoena  may  be  directed  to  any  sheiifi"  or  constable.     Stat.  323,  ^12. 


^2,  3.]  DEPOSITIONS.  S9 

onerate  the  witness.  An  attachment  will  not,  in  general,  issue 
without  personal  service  upon  the  witness.(2) 

If  a  witness  have  no  reasonable  excuse  for  his  neglect  to  obey 
the  subpoena,  he  may  be  fined  in  any  sum  not  exceeding  fifty  dol- 
lars, for  the  use  of  the  party  for  whom  he  was  subpoenaed,  together 
with  costs. 5 

When  a  witness  refuses  to  answer  such  questions  as  he  is  bound 
to  answer,(3)  the  officer  may  fine  him  any  sum  not  exceeding  fifty, 
nor  less  then  five  dollars,  for  the  use  of  the  party  for  whom  he  was 
subpoenaed :(4)  or  commit  him  to  the  jail  of  the  county,  there  to 
remain  until  he  shall  submit  to  testify.(5) 


Sec.     III. FORM    OF    OATH    TO    WITNESS,    AND    FORMS    OF    DEPOSITION, 

CERTIFICATE,  ETC. 

The  justice,  at  the  time  and  place  mentioned  in  the  notice  for 
taking  the  depositions,  will  administer  to  the  w^itnesses  an  oath  in 
the  form  following: 

You  [if  there  be  more  than  one^  sat/.  You  and  each  of  you,]  do  sol- 
emnly swear  in  the  presence  of  Almighty  God.  the  searcher  of  all 
hearts,  [or  if  the  witness  do  not  swear  by  the  uplifted  hand^  upon  the 
Holy  Evangelists  of  Almighty  God,]  that  you  will  testify  the  truth, 
the  whole  truth,  and  nothing  but  the  truth,  in  the  cause  now  pend- 
ing before  [liere  mention  the  court  or  justice  before  whom  the  suit  is 

(s)  Stat.  322,  $7. 


(2)  The  attachment  and  the  proceedings  thereon,  can  be  readily  made  out  from 
the  forms  given  on  pages  55  and  5G,  and  from  the  recital  in  the  form  of  a  Mittimus, 
which  will  be  found  below  in  note  (5). 

(3)  As  to  what  questions  a  witness  is  bound  to  answer,  see  page  65. 

(4)  The  form  of  the  docket  entry  can  be  readily  made  out  by  changing  the  form 
on  page  66,  according  to  the  facts  stated  in  the  recital  of  the  mittimus,  in  next 
note. 

(5)  Form  of  Mittimus  for  the  commitment  of  a  witness. 
The  State  of  Oliio,  Townslilp,  County,  ss. 

To  the  Keeper  of  the  Jail  of  the  County  aforesaid,  greeting: 

Whereas,  on  the day  of ,  in  the  year ,  in  a  suit  then  pending  in 

[here  stale  the  court  find  count//  where  the  suit  is  pending,]  wherein  A B is 

plaintiff,  and  C D is  defendant,  one  E F was  duly  subpoenaed, 

at  the  instance  of  A B ,  to  appear  before  me,  G H ,  a  justice  of 

the  peace  in  and  for  said  township  and  county,  at  [here  stale  the  place  and  time, 
wficre  and  when,  the  suljpce.nu  directed  the  witness  to  upj)ear,]  to  testify  in  said  cause 
before  me,  that  his  deposition  miglit  be  taken.  The  s»id  E F accord- 
ingly then  and  there  appeared,  and  tliough  not  incompetent  to  testify  in  said  cause, 
nor  otherwise  protected  by  law  from  testifying,  he  then  and  there  refused  to  tes- 
tify.    AVliereupon  it  was  ordered  and  adjudged  by  me,  that  said  E F be 

committed  to  the  jail  of  said  county,  there  to  remain  until  lie  shall  submit  to  testify 
in  the  premises. 

You  are  tlicrefore,  in  the  name  of  the  State  of  Ohio,   hereby  commanded  to 

receive  the  said  F. F into  your  custody  in  the  jail  of  t!ic  county  aforesaid, 

there  to  remain  until  he  shall  submit  to  testify  as  aforesaid. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 

G H ,  J.  P.  (Seal.) 

12 


90  DEPOSITIONS.  [Prt.  1,  Ch.  16, 

pending,']  wherein  A ]] is  i)kiintiir,  and  C D is 

defendant,  as  you  will  answer  to  God. 

If  the  witness  affirm,  the  form  of  the  aflirmation  may  be  as  fol- 
lows : 

You  do  solemnly  and  sincerely  declare  and  affirm  that  you  will 
testify  the  truth,  the  whole  truth,  and  nothino;  but  the  truth',  in  the 
cause  now  pcndinir  before  [Iiere  mention  the  court  or  justice  before 

whom  the  suit  is  pondimr.']  wherein  A r-  B is  plaintilfand 

C D is  deiendant;  and  this  you  do  under  the  i)ains  and 

penalties  of  perjury. 

The  witness  must  state  his  Avhole  story  and  all  he  knows,  and  the 
justice  or  officer  taking  the  deposition  must  note  it  down  as  nearly 
in  the  words  of  the  witness  as  possible,  so  as  at  the  same  time  to 
make  it  intelliiiible. 

When  an  objection  is  made,  on  the  trial  of  the  cause,  to  the 
competency  of  a  witness,  or  the  relevancy  of  the  testimony,  the 
justice  immediately  decides  the  question,  and  sustains  or  overrules 
the  objection.  But  when  taking  a  deposition  he  can  exercise  no 
such  ])ower.  He  must,  in  general,  receive  and  note  down  in  the 
deposition,  the  answers  to  questions  asked  by  one  party,  if  he  insist 
upon  it,  whether  the  other  party  object  or  not  to  the  propriety  or 
relevancy  of  the  testimony.(6) 

The  justice  will  write  out  the  deposition  in  the  form  following: 

FORM  OF  DEPOSITIONS. 

Depositions  of  witnesses  taken  in  a  cause  pending  in  the  court 
of  [Jiei'e  insert  the  name  of  the  court  or  justice  before  ivhom  the  suit  is 
pending^']  wherein  A B is  plaintiff,  and  C D is  de- 
fendant, and  for  said  plaintiff  [or  defendant,  as  the  case  may  Z>e,]  in 
pursuance  of  the  notice  hereto  attached,  and  at  the  time  and  place 
therein  mentioned,  \llere  state  which  of  the  parties^  or  their  agents^ 
was  present?^ 


(6)  Facts  often  become  material  in  one  stage  of  a  cause  wiilcli  would  be  irrele- 
vant and  immaterial  in  another.  The  object  of  a  deposition  or  question  may  be  to 
prove  such  facts,  or  to  prove  what  a  third  person  said  in  relation  to  a  matter  appu- 
renttij  remote  from  the  issue,  for  tlie  purpose  of  impeacliing'  the  testimony  of  aucii 
third  person.  How  then  sliall  tlie  officer  who  takes  a  deposition  settle  advisedly 
even  tlie  question  as  to  hearsay  evidence? 

Tlie  loosfiicss  of  practice,  f;-ro\vinp;-  out  of  the  rule  laid  down  in  the  text,  is  pre- 
vented in  Kiitrland  and  some  of  the  United  States,  by  requiring-  written  intrrrug-a- 
toi-ies  to  be  filed  in  the  cause,  upon  whicli,  alone,  witnesses  are  e.xamincd.  In 
this  State,  ohjfctions  are  m;ide  to  the  competcnry  «)f  tl»e  witness  and  to  sucli  parts 
of  the  diposition  as  contain  ii-relevant  or  inipro|)ir  test'mony,  at  the  time  the  d(  po- 
B-tion  is  off.-1-ed  in  i  v'di-nce  on  the  trial.  If  the  w  tncss,  whose  d(  ptisition  has  been 
taken,  be  interested  in  the  event  of  the  suit  or  otl.eiwise  incompetent,  no  notice 
whatever  is  taken  tif  liis  deposition,  but  the  same  is  ruhd  out.  That  part  of  a 
deposition  which  contains  irrelevant  or  improper  testimony,  will  be  stricken  out 
on  the  tr.al. 


^3.]  EEPOSITIONS.  91 

W S ,  of  the  county  of ,  of  lawful  age,  being  first 

duly  sworn,  \_or  affirmed,]   by  me,  as  hereafter  certified,  deposes  as 
follows: 

QuKSTlON  — 

Answer,  [//ere  insert  as  ?iearlt/in  the  words  of  the  witness  as  possi- 
ble {so  as  at  the  sami  time  to  he  inteUigible^)  the  testimony  of  the  wit- 
ness. If  any  questions  are  asked  of  the  ivitness  by  the  party  against 
whom  the  tesliinony  is  to  bz  usef  say,']     Upon  cross-examination  by 

the  defendant,  [rjr  plain tift',  as  the  case  may  6/;,]  the  said  W S 

further  says,  that,  '[here  insert  the  testimonij  on  the  cross-examination.^ 

[^If  any  paper  is  referred  to  by  the  witness  it  should  be  marked  by  a 
letter.,  thus:  ''"A,"'  caid  annexed  to  the  deposition ;  and  the  witness  can 
refer  to  and  identify  it  as  the  ''-paper  hereto  annexed,  marked  A."] 

After  the  testimony  of  the  witness  has  been  written  down,  it 
should  be  then  carefully  read  to  him,  and  corrected  as  he  may  desire. 
The  witness  will  then  sign  his  name  at  the  end  of  his  deposition. 

If  there  are  two  or  more  witnesses,  the  justice  will  commence  the 
next  deposition  immediately  below  the  first,  in  the  form  following: 

Also,  T S ,  of county,  and  of  lawful  age,  being  first 

duly  sworn,  [or  aflirmed,]  as  hereafter  certified,  deposes  as  follows: 

Question  — 

Answer,  [here  insert  the  testimony  as  heretofore  directed.^  and  then 
the  witness  will  sign  his  name  to  his  deposition.] 

Each  witness  having  subscribed  his  own  deposition,  the  justice 
will  in  all  cases  annex  at  the  end  of  the  whole  his  certificate,  which 
must  be  in  the  form  following: 

I,  G II ,  a  justice  of  the  peace  in  and  for  the  township  of 

-,  in  the  county  of -,  Ohio,  do  hereby  certify  that  the  above 


named  [here  insert  the  names  of  all  the  ivituesses]  were  by  me  first 
duly  sworn,  [or  afiirmed,]  to  testify  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  and  that  the  foregoing  depositions  by  them 
respectively  subscribed,  were  reduced  to  writing  by  me,  [or  if  re- 
duced to  writing  by  any  other  person.,  Jiere  name  the  person^]  and  were 
taken  at  the  time  and  place  specified  in  the  inclosed  notice. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  this 

day  of ,  in  the  year .  [Signed] 

G II . 

It  is  said  to  have  been  decided  in  one  of  the  circuits  of  the  court 
of  common  pleas  in  this  state,  that  the  justice  should  endorse  on  the 
envelope  of  the  depositions,  the  following  words:  'SSealed  up  and 
addressed  by  me,*'  and  sign  his  name  thereto. 

Before  senling  up  the  deposition,  tlie  justice  should  read  the  rules 
at  the  end  of  this  section  in  relation  to  objections  to  depositions, 
and  sec  that  they  do  not  apply  to  the  one  he  has  taken. 

If  the  depositicjns  are  to  be  used  within  the  limits  of  the  judicial 
circuit  oi  the  court  of  common  pleas  wherein  they  are  taken,  no 


92  DEPOSITIONS.  [P/7.   1,  67/.   li?, 

further  act  of  authentication  is  necessary  than  the  uhove  certificate; 
but  the  justice  taking  the  same,  will  deliver  them  into  the  office  of 
the  proper  clerk,  or  other  proper  ollicer;  or  will  seal  them  up  with 
a  copy  of  the  notice,  direct  and  transmit  them  to  such  clerk  or  other 
officer,  there  to  remain  under  seal  until  oi)ened  according  to  the 
rules  of  court.''  If,  however,  the  depositions  are  not  taken  within 
tlie  judicial  circuit  in  which  they  are. to  be  used,  and  arc  taken  by  an 
officer  having  no  seal  of  olHce,  whether  taken  in  this  State  or  else- 
where, they  must  be  further  authenticated,  eitlicr  by  jiarol  proof, 
adduced  in  open  court,  or  by  the  annexation  of  the  official  certificate 
and  seal  of  some  secretary  or  other  officer  of  State,  keeping  the 
great  seal  of  the  State,  or  the  clerk  or  prothonotary  of  the  court  of 
some  city,  county,  circuit,  district,  state,  territory,  province,  or 
other  division,  that  the  justice  or  other  officer,  by  whom  the  depo- 
sitions were  taken,  was,  at  the  time  of  taking  the  same,  a  justice  of 
the  peace,  or  an  officer,  within  the  meaning  of  the  statute,'  But  if 
the  otTicer  before  whom  depositions  are  taken,  w^hether  residing  in 
this  State  or  elsewhere,  have  a  seal  of  office,  they  require  no  fui"ther 
authentication  than  the  certificate  and  signature  of  such  officer,  (in 
the  form  given  above.)  with  Ids  seal  of  oflice  thereto  annexed.'' 

A  justice  of  the  peace  has  no  official  seal,(7)  and  consequently,  a 
deposition  taken  before  a  magistrate  who  resides  out  of  the  judicial 
circuit  where  it  is  to  be  used,  cannot  be  received  in  evidence  w^ith- 
out  the  further  certificate  of  the  clerk,  prothonotary,  or  secretary, 
as  above  mentioned.  If  taken  before  a  justice  within  the  judicial 
circuit,  his  certificate,  in  the  form  above  given,  will  be  sufficient, 
without  any  further  authentication. 

A  deposition  cannot  be  received  in  evidence  in  a  cause, 

Ist.,  Unless  the  notice  required  by  law  was  served  on  the  oppo- 
site party  in  the  manner  and  within  the  time  heretofore  mention- 
ed(8).  If,  however,  the  opposite  party,  by  himself  or  agent,  was 
present  at  the  taking  of  the  deposition  and  cross-examined  the  wit- 
nesses, he'  cannot,  in  general,  object  to  the  want  of  notice. 

S'?,  Unless  the  deposition  appears  to  have  been  taken  at  the  time 
and  place  mentioned  in  the  notice.  But  the  opposite  party  cannot, 
in  general,  object  to  any  defect  as  to  the  time  and  place,  if  he  or  his 
agent  w'as  present  when  the  deposition  was  taken,  and  cross-exam- 
ined the  witness. 

3'Z,  Unless  the  notice  under  which  the  deposition  was  taken  is 
inclosed  and  returned  with  the  deposition.'  But  this  objection  is 
also,  in  general,  waved,  if  the  opposite  party  appeared  and  cross- 
examined  the  witness. 

4///,  Unless  it  appear  from  the  certificate  of  the  justice  or  officer 
taking  the  deposition,  that  the  witnesses  were  sworn  or  affirmed  to 
testify  the  truth,  the  whole  truth,  and  nothing  but  the  truth,""     The 

(h)  Stat.  322,  323,  $4,9,  and  11.        (k)  Stat.  324,  $17,  (m)  VVrijhi's  Rep.  330.  746, 

(i)    Id.  lb.  $11.  (1)    Wright's  Itep.  632.  747. 


(7)  I  understand  an  official  sc.il  to  be  one  which  lias  a.  device  upon  it  known  to 
the  hiws  of  the  country  in  wlilch  tlie  oflicer,  wlio  holds  it,  resides. 

(8)  See  paj^e  88. 


§3.]  DEPOSITIONS OATHS.  93 

object  ot"  the  statute  is,  that  the  witness  shall  be  first  sworn  and  then 
relate  his  whole  story  and  all  he  knows. 

5th^  Unless  it  appear  from  the  deposition,  or  certificate  of  the 
justice,  that  he  or  some  other  person  named  in  the  deposition,  re- 
duced it  to  writing. 

6^A,  Unless  it  be  authenticated  by  the  certificate  of  the  clerk,  or 
secretary,  etc.,  as  above  mentioned. (9)  if  taken  out  of  the  judicial 
circuit  of  the  common  pleas  in  which  it  is  to  be  used.  If,  however, 
as  has  already  been  repeated,  a  deposition  be  taken  within  such 
judicial  circuit,  or  if  it  be  taken  by  an  officer  out  of  such  circuit, 
who  has  a  seal  of  office,  no  certificate,  except  that  of  tlie  officer 
taking  it,  is  required. 


OATHS. 

Justices  are,  in  general,  familiar  with  the  forms  of  oaths  admin- 
istered to  witnesses;  it  may,  however,  be  proper  before  closing  the 
subject  of  evidence,  to  here  insert  such  as  are  usually  administered 
to  witnesses: 

FORM  OF  OATH  TO  A  WITNESS,  WHEN  HE  SAVEARS  BY  UPLIFTED  HAND. 

You  [or  if  more  titan  one  witness  he  sxcorn^  You  and  each  of  you] 
do  solemnly  swear,  in  the  presence  of  Almighty  God,  the  searcher 
of  all  hearts,  that  you  will  testify  the  truth,  the  whole  truth,  and 
nothing  but  the  truth,  in  the  cause  now  pending  here  before  me, 

wherein  A B is  plaintiff'  and  C D is  defendant; 

and  this  you  rlo  as  you  shall  answer  to  God. 

FORM  OF  OATII  TO  WITNESS,  WHEN  HE  SWEARS  UPON  THE  HOLT  B-BLE. 

You  do  solemnly  swear,  upon  the  Holy  Evangely  of  Almighty 
God,  that  ycu  will  testify  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  in  the  cause  now  pending  hei'e  before  me,  wherein 

A B is  plaintiff"  and  C D is  defendant;  and  this 

you  do  as  you  shall  answer  to  God. 

Some  religious  sects  do  not  consider  an  oath  binding  on  their 
consciences  unless  it  be  administered  thus: 

''You  do  solemnly  swear  by  the  Ever-living  God,  that  you  will 
testify,"  etc.  The  form  of  the  oath  should  be  so  varied  as  to  meet 
the  conscientious  opinions  of  the  witness,  at  the  same  time  retain- 
ing its  substance. 

(9)  Sec  preceding  page. 


04  OATiia.  [Prt.  1,  C/?.  15.] 

ronSI  OF  AFFIRMATION   TO   A   W1TXES9. 

You  [and  each  of  you]  do  solemnly  declare  and  affirm  that  you 
■will  testily  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  in 

the  c  luse  now  ponding  here  hefore  ine,  wherein  A B is 

pliintili' and  C D is  defendant;  and  this  you  do  under  the 

pains  and  penalties  of  perjury. 


FORM  OF  AN  OATH  TO  AN  TNTF-RPRETER,  WHEN    THE  WITNESS  DOES  NOT 
UNDERSTAND  THE  ENGLISH   LANGUAGE. 

You  do  solemnly  swear,  in  the  presence  of  Almighty  God,  the 

searcher  of  all  hearts,  that  you  will  truly  interpret  to  W S , 

[the  ivitne.ss.1  the  oath  which  shall  be  administered  to  him  as  a  wit- 
ness in  the  cause  now  in  hearing,  wherein  A B is  plaintilT 

and  C D is  defendant,  and  truly  interpret  the  testimony 

of  the  said  W S ." 


FORM  OF  AN  OATH  OR  AFFIRMATION,  AS  TO  THE  TRUTH    OF    AN    AFFIDAVIT, 

You  do  solemnly  swear  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  [or  if  the  person  (ifj'irm^  s/n/^  You  do  solemn- 
ly and  sincerely  declare  and  atlirm,]  that  the  matters  set  forth  in  this 
paper  and  to  which  you  have  subscribed  yoiu*  name,  are  true,  as  you 
verily  helieve:  [here  atl'l,  if  the  ivitnr.ss  ajjirni;  and  this  you  do  un- 
der the  pains  and  penalties  of  perjury.] 

(n)   Wiiglil's  Hep.  157. 


CHAPTER  XVI. 


PROCEEDINGS  IN  JURY  CASES;  THE  DECISION  OF  A  CAUSE 
BY  A  JUSTICE;  AND  THE  EFFECT  AND  FORM  OF  JUDG- 
MENTS. 

SECTION    I.     PROCEEDINGS  IN  JURY  CASES,  AND  THE  DECISION  OF  A  CAUSE  BT 
THE  justice;    AND  HEREIN, 

(A)  In  what  cases  a  jury  is  allowed^  when  to  he 
claimed.,  and  the  effect  of  confession  as  to  costs. 

{B)   Contimiance.^  venire.,  and  impannehnent.,  in  jury 
cases. 

(C)  Oath.,  trial.,  verdict.,  etc.,  in  jury  cases. 

(D)  The  bill  of  exceptions. 

(E)  The  decision  of  a  cause  by  a  justice. 

ri,  OF     THE     NATURE,    EFFECT    AND     FORM     OF     JUDGMENTS;     AND 
HEREIN, 

(^4)  Judgment  of  nonsuit. 

(B)  Discontinuance. 

(C)  Judgment  on  the  merits. 


Sec.    I. PROCEEDINGS  IN  JURY  CASES,  AND  THE  DECISION   OF    A    CAUSE 

BY  THE  JUSTICE;    AND  HEREIN, 

{A)  In  ichat  cases  a  jury  is  allowed^  when  to  be  claimed.,  and  effect 
of  confession  as  to  costs. 

By  act  of  February  14th,  1840,*  it  is  provided,  that  in  every 
civil  action,  except  such  as  were  then  authorized  by  law  to  be 
tried  by  a  jury,  if  the  defendant  disputed  the  plaintift''s  claim,  or 
the  plaintiff  disputed  the  defendant's  defence,  but  not  otherwise, 
either  party  shall  be  entitled  to  demand  a  jury.  This  demand 
must  be  made  before  the  justice  proceeds  to  a  hearing  of  the  cause 
on  the  merits,  and  after  an  appearance  by  the  defendant,* 

If,  prior  to  calling  the  jury,  the  defendant  is  willing  to  confess  a 
certain  amount,  it  will  be  proper  for  the  justice  to  note  that  ffict, 
and  the  amount,  on  the  docket;  for,  if  the  plaintiff,  after  being  in- 
form3d  thereof,  still  persists  in  dcmand'ng  a  jury,  nnd  he  does  not 
recover  a  greater  cmoimt  thru  thnt  which  the  defend:  nt  w."s  will- 
ing to  confess,  the  costs  accruing  in  consequence  of  calling  the 
jury,  must  be  paid  by  the  plainthT.* 

(a)  Stat.  533,  51i3. 


96  JURY  TRIALS.  [P/t.  1,  Ch.  16, 


[B)  Continuance^  venire^  and  inipannelment^  in  jury  cases. 

If  a  jury  is  demanded  l>y  cither  party,  the  justice  inay  continue 
the  cause  ior  so  long  a  time  as  he  may  deem  expedient,  (but  not 
longer  than  is  allowed  by  law  in  other  cases,)  and  issue  a  venire, 
directed  to  any  constable  of  the  township,  for  six  citizens  of  the 
township,  (unless  the  parties  agree  upon  a  less  number,)  having  the 
qualifications  of  electors  within  the  township,  and  no  wise  of  kin 
to  eiflier  party,  nor  interested  in  the  suit.** 

The  jury  are  chosen  as  follows:  The  names  of  eighteen  persons 
being  written  by  the  justice  on  a  slip  of  paper,  the  defendant  or 
his  agent  must  first  strike  olf  one  name,  and  then  each  party  alter- 
nately strikes  off  a  name,  until  each  has  stricken  off  six  names. 
The  remaining  six  will  constitute  the  jury.  If  either  party  neglects 
or  refuses  to  strike  a  jury,  the  justice  may  strike  the  same  for  him. 

The  justice  then  issues  a  venire,  in  the  form  following:*^ 

The  State  of  Ohio, County,  ss. 

To Constable  of tow^nship,  in  said  county,  greeting: 

You  are  hereby  commanded  to  summon of  said  township, 

to  be  and  appear  at ,  in  said  township,  on  the day  of , 

A.  D. ,  at o'clock  in  the noon,  to  serve  as  jurors  in 

the  suit  of  A B against  C D ,  then  and  there  to 

be  tried;  and  this  they  shall  in  no  wise  omit,  under  the  penalty  of 
the  law.  And  have  you  then  there  this  writ,  with  your  doings 
thereon. 

Given  under  my  hand  and  seal,  this day  of ,  A.  U.  18 — . 

G H ,  J.  p.  (Seal) 


The  constable  returns  the  venire,  with  the  names  of  the  persons 
by  him  summoned,  at  the  time  appointed  for  the  trial  of  the  cause. 
The  return  of  the  constable  may  be  as  follows: 

June  1,   1841,     Summoned  A H ,  [naming  the  jurors 

served^']  as  commanded  by  the    within  writ.     R H ,  vol 

found. 

Fees I J ,  Constable. 

of township. 


If  a  juror,  thus  summoned,  fails  to  attend,  having  no  reasonable 
excuse  to  assign  for  such  failure,  he  may  be  proceeded  against  by 
warrant,  and  fined  in  any  sum  not  exceeding  ten  dollars.(l) 

(b)  Stat.  533,  5124.  (c)  Stat.  535,  $132. 


(1)  Stat.  535,  §133.     The  form  of  the  docket  entry  in  such  case  can  be  readily 
made  out  from  the  one  on  pag^e  56. 


§1,(B),(C).]  JURY    TRIALS.  97 

If  by  reason  of  challenge  for  cause, (2)  or  by  reason  of  sickness, 
or  other  disability,  six  jurors  are  not  impanneled,  the  constable 
may  fill  the  pannel  from  bystanders,  as  is  done  by  the  sheriff  in  the 
courts  of  common  pleas,* 

(C)  Oath^  trial  and  verdict^  injury  cases. 

The  following  is  the  form  of  the  oath  to  be  administered  by  the 
justice  to  the  jury: 

You  do  solemnly  swear  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  [or  if  a  juror  affirm^  say^  You  do  solemnly 
and  sincerely  declare  and  affirm,  under  the  pains  and  penalties  of 
perjury,]  that  you  will  well  and  truly  try  the  matter  in  difference 

between  A B and  C D ,  and  a  true  verdict  give 

according  to  the  evidence. 

After  the  jury  are  swoni,  the  plaintiff  should  proceed  with  the 
examination  of  his  witnesses,  in  like  manner  as  already  stated  in 
a  preceding  chapter.(3)  All  questions  as  to  the  admission  and  re- 
jection of  testimony  must  be  decided  by  the  justice.  The  jury 
decide  nothing  during  the  progress  of  the  cause;  so  that  all  proper 
questions  arising  on  the  trial,  are  decided  by  the  justice.  After  the 
testimony  is  closed,  the  plaintiff  has  a  right  to  address  the  jury. 
The  defendant  may  then  address  the  jury,  and  the  plaintiff  after- 
wards replies.  It  will  be  perceived  that  the  plaintiff  has  a  right  to 
open  and  close  to  the  jury;  but  neither  he  nor  his  counsel  can  be 
permitted  to  open  the  case  with  two  addresses,  or  reply  to  the  de- 
fendant with  two  addresses.  The  defendant,  after  the  plaintiff  has 
made  his  first  address  to  the  jury,  may,  by  himself  or  counsel,  make 
two  addresses,  but  he  has  no  right  to  address  the  jury  after  the 
plaintiff  has  made  his  closing  remarks. 

After  the  parties  or  their  counsel  have  addressed  the  jury,  the 
justice,  if  the  parties  desire  it,  gives  to  the  jury  his  opinion  of  the 
law  growing  out  of  the  facts  of  the  case.  The  jury,  however,  are 
the  judges  of  the  facts.  The  jury  are  then  conducted  by  the  con- 
stable, to  some  private  and  convenient  place,  where  they  may 
deliberately  and  without  interruption,  consult  upon  their  verdict.'' 

If  the  jury,  after  sufficient  time  for  deliber<ition,  are  unable  to 
agree  upon  a  verdict,  they  must  be  discharged  by  the  justice;  and 
thereupon  a  new  venire  issues,  and  the  like  proceedings  are  had  as 
hereinbefore  mentioned;  but  the  time  appointed  for  the  subsequent 
trial  must  not  be  moi'e  than  three  days  from  and  after  the  day  on 
which  the  previous  jury  were  discharged,  unless  otherwise  agreed 
by  the  parties. 

(a)  Slat.  534,  $126.  (b)  Slat.  534,  $127. 


(2)  As  to  what  are  good  challeng-es  for  cause,  see  Stat.  492,  493.  It  would  also 
be  a  sufficient  ciuise  of  cludlengc  tliut  tlie  juror  was  not  a  citizen  of  the  township 
or  a  fjualified  voter  therein.      Stat,  533,  ^  124. 

(3)  Sec  ante,  p.  03. 

13 


98  JURY  TRIALS BILL  OF  EXCEPTIONS.      [Prt  1,  CA.  1  6, 

The  verdict,  when  agreed  upon,  is  announced  by  the  jury  in  open 
court  to  the  justice. 

If  either  i)arty  is  dissatisfied  with  the  verdict,  the  justice  cannot 
in  general  grant  a  new  trial.  Tlie  justice  can  set  aside  the  verdict 
and  grant  a  new  trial  in  no  case  except  when  it  shall  appear  to  his 
satisfaction,  from  the  testimony  of  disinterested  witnesses,  that  the 
verdict  was  obtained  by  fraud,  partiality,  or  some  undue  means;  in 
which  case,  if  he  sets  aside  the  verdict,  a  new  trial  is  proceeded  in 
and  conducted  as  in  case  of  the  disagreement  of  the  jury,  just  men- 
tioned.*^ 

The  judgment  on  the  verdict,  and  the  execution,  are  in  the  usual 
form.  The  judgment  should  not  be  entered  on  a  verdict,  until  the 
party  in  whose  favor  the  same  is,  pays  the  jury  each  fifty  cents, 
which  is  allowed  to  the  party  against  his  adversary  in  the  taxation 
of  costs.  If,  however,  the  amount  of  the  judgment  is  not  greater 
than  the  amount  to  which  the  defendant  was  willing  to  confess, 
prior  to  calling  the  jury,  the  costs  so  accruing  in  consequence  of 
calling  the  jury,  must  be  taxed  to,  and  paid  by,  the  plaintilf.** 

If  the  jury  do  not  agree  upon  a  verdict,  they  are  paid  fifty  cents 
each,  by  the  party  calling  the  jury.*  In  such  last  mentioned  case, 
it  would  seem  that  the  party  calling  the  jury  cannot  afterwards 
have  the  jury  fee  taxed  against  the  opposite  party,  whatever  may 
be  the  event  of  the  suit. 

The  constable  who  serves  the  venire  is  bound  to  attend  the 
trial  and  take  charge  of  the  jury,  for  which  he  is  entitled  to  fifty 
cents  per  day,  to  be  taxed  in  the  bill  of  costs.  If  he  is  detained  a 
day  and  a  part  of  another,  he  will  be  entitled  to  pay  for  two  days. 

When  the  amount  found  by  the  jury  does  not  exceed  the  sum  of 
twenty  dollars,  exclusive  of  costs,  there  can  be  no  appeal,  what- 
ever may  have  been  the  amount  in  controversy,  or  the  amount 
claimed  by  the  parties. 


(D)  The  Bill  of  Exceptions. 

In  the  jury  cases  provided  for  by  the  above  mentioned  statute  of 
February  14th,  1840,  (but  not  in  other  jury  cases  provided  for  by 
other  laws,)  either  party  has  a  right  to  except  to  the  opinion  of  the 
justice,  upon  any  (juestion  of  law  arising  during  the  trial  of  the 
cause;  and  when  either  party  olledges  such  exception,  the  justice 
must  sign  and  seal  a  bill  containing  such  exception,  if  truly  al- 
ledged,  with  the  point  decided,  so  that  the  same  may  be  made  part 
of  the  record  and  docket  entry  in  the  cause. ^ 

Justices  arc  familiar  with  the  mode  of  conducting  and  the  prac- 
tice in  juiy  trials,  and  therefore  little  is  here  said  in  relation  to 
them,  but  the  subject  of  bills  of  exception  is  unknown  to  them; 
and  it  is  to  be  feared  that  much  vexatious  litigation  and  injustice 
will  grow  out  of  the  law  allowing  them  to  be  presented  for  their 
signature. 

(c)  Stat.  534,  $129.  (c,  Id.  535,  $131. 

(d)  Id.  533,  $123.  (g)  Id.  535,  $135. 


§1,  (C),  (D).]  J0Rr  TRIALS BILL  OF  EXCEPTIONS.  99 

1.  As  to  what  opinions  of  the  justice  are  the  proper  subject  of 
a  bill  of  exceptions. 

The  exception  must  be  founded  on  matter  of  law,  or  on  a  point 
of  law,  arising  out  of  a  matter  of  fact  not  denied,  either  as  to  the 
competency  of  witnesses;'  the  admissibility  of  evidence;''  or  the 
legal  etiect  of  it;^  the  opinion  of  the  court  in  a  charge  to  the  jury; 
or  the  refusal  to  give  an  opinion  upon  the  law  arising  properly  in 
the  case." 

Exceptions  will  not  lie  to  a  charge  or  opinion  wholly  abstract 
or  out  of  the  case,  so  as  not  to  affect  it;  though  the  charge,  &c.,  be 
erroneous."  Nor  for  misdirection  of  the  court  as  to  matters  of  fact; 
or  for  refusal  of  the  court  to  charge  on  the  legal  result  of  ••'  the  cir- 
cumstances of  the  case,"  if  those  circumstances  were  not  found  as 
facts." 

So,  if  the  defendant  offer  evidence  that  is  rejected,  and  the  plain- 
tiff then  waive  the  objection,  and  the  court  admit  the  evidence,  but 
the  defendant  refuses  to  offer  it,  he  cannot  except  to  its  previous 
rejection. I*  So,  if  the  error  was  for  the  benefit  of  the  party  ex- 
cepting;'' or  a  wrong  reason  was  given  for  a  correct  decision,""  the 
judgment  of  the  justice  will  not  be  disturbed  on  certiorari. 

2.  At  what  time  the  bill  of  exceptions  must  be  made  out  and 
filed. 

The  bill  of  exceptions  must  be  presented  to  the  justice,  and  be 
signed  and  sealed  by  him,  while  holding  his  court,  and  in  general 
should  be  prepared  and  finished  before  the  close  of  the  trial.'  A 
justice  should  not  sign  a  bill  of  exceptions  at  a  distant  day  from  the 
trial,  unless  the  parties  have  consented  to  the  delay.*  Exceptions 
to  instructions  to  the  jury  are,  it  seems,  however,  seasonable,  if 
made  after  the  verdict  to  the  jury  is  returned.' 

But  exceptions  to  evidence  must  be  at  least  mentioned  to  the  jus- 
tice, as  soon  as  he  decides  to  admit  or  reject  it,  so  that  a  note  of  it 
can  be  immediately  made  by  the  justice  or  opposite  party,  if  de- 
sired. The  exceptions,  however,  may  be  reduced  to  form  and 
signed  afterwards;  that  is,  immediately  after  the  jury  retire,  but 
should  not  be  delayed  until  after  the  parties  leave  and  the  justice 
retires,  unless  by  consent  of  parties.'^ 

The  bill  must  appear,  on  its  face,  to  be  taken  and  signed  at  the 
trial,  though  in  practice  it  may  be  signed  afterwards,  when  reduced 
to  form.  If  it  appear  on  its  face  to  be  taken  and  signed  after  the 
trial,  it  is  a  fatal  defect.* 

Reasonable  time,  either  during,  or  immediately  after  the  trial, 
should  be  allowed,  to  write  out,  in  form,  the  exceptions;  and  when 

(J)  3T.  R.27.  (r)  5  O.  R.  136. 

(k)  1  Salk.284.  (s)  6  J.  J.  Marsh.  Rep.  247. 

(I)   3  Burr.  1G93;  2  W.  Bl.  n.929.  (t)  4  Pet.  Rep.  102;  4  Pick.  Rep.  228. 

(in)3  Crancli,  300;  4  fd.  60.  62.  (v)  3  Pick.  Rep.  173. 

(n)  eCow.  Rep.  674;  5  O.  R.  375.  (w)  11  Pet.  Rep.  185;     11  S.  .^^  R.  Rep.  267; 

(oj  2  Caine's  Rep.  168;  1  Mason  Rep.  57;  1  Monr.  Rep.  215;  8  S.  JJ-  R.  21 1;  19  John. 

4  C'ranch,  62.  Rep.  246;  9  la.  345;  7  Wend.  Rep.  536. 

^p)  7  8.  .!;•  R.  219.  (a)  9  Wheat.  Rep.  651  ;    6  Wend.  Rep.  263. 
?q)  2  O.  R.  315.  ^ce  Suiiiiier's  Rep.  19. 


100  JURY  TRIALS BILL  OF  EXCEPTIONS.       [Pr/.  1,  CA.  16, 

a  trial  is  closed  and  a  verdict  rendered  at  a  late  hour  in  the  night, 
the  case  might  j)ro})erly  be  continued  over  to  the  next  day,  for  the 
purpose  of  preparing  the  bill  of  exceptions.^ 

3.  Forms  and  re(iuisites  of  bills  of  exception,  when  testimony  is 

overruled. 

The  State  ofOliio, County, township,  ss: 

Be  it  remembered,  that  on  tiie  trial  of  the  cause  between  A 

B ,  and  C D ,  by  jury,  before  the  undersigned  G 

H ,  a  justice  of  the  peace  in  and  for  said  township,  at  his  office 

therein,  on  the day  of in  year  1 84 — ,  *  the  said  A 

B to  maintain  the  issue,  &c.  on  his  part,  oflered  to  prove  to  the 

jury  that  [Here  sUUe  the  lestimony  objected  to  and  overruled^  and  such 
other  matter  as  xcill  show  the  particular  point  wherein  the  party  ex- 
cepting ?n(rf/  have  been  ivjiired  bi/  the  opinion  excepted  to^  and  then 

proceed  as  follows:']  Whereupon  the  said  G D objected  to 

the  admission  of  said  testimony,  which  objection  was  overruled  by 
the  court,  and  said  testimony  admitted,  to  which  oy)inion  of  the  court 
the  said  C D excepted,  and  prayed,  t  that  his  bill  of  excep- 
tions in  that  behalf  might  be  allowed,  which  is  accordingly  done, 
and  at  his  instance  the  same  is  made  a  part  of  the  record  and  docket 
entry  in  this  cause. 

June  3,  1841,  [the  day  of  the  ti-iall 

G H ,  (Seal.) 

Justice  of  the  peace  as  above  mentioned. 

The  like,  upon  a  supposed  misdirection  of  the  court  to  the  jury. 

The  State  of  Ohio, county, township,  ss. 

Be  it  remembered,  [S^c.^  jjroceeding  in  like  icords  as  in  the  prece- 
ding form^  to  the  star  (*),  and  from  that  point  as  follon)s-\  the  evi- 
dence on  both  sides  being  closed,  the  defendant  \or  plaintiff",  as  the 
case  may  ie,]  moved  the  court  to  instruct  the  jury  tliat  [//ere  state 
the  instructions  or  opinion  of  the  law  7'equested  by  the  party^  and 
such  of  the  evidence  or  other  facts  in  the  case  as  xcill  shorn  that  the 
instruction  requested  would  decide  a  point  arising  in  the  case^  and 
then  proceed  as  follows :]  which  instruction  the  said  justice  refused 
to  give  to  the  jury;  and  thereupon  said  defendant  [or  plaintiff',]  ex- 
cepted to  such  refusal,  and  prayed,  [6^-c.  and  jjroceeding  as  in  the  pre- 
ceding form  from  the  dagger  (t)  to  the  end^ 

The  bill  of  exceptions  should  be  copied  into  the  docket  entry  of 
the  cause,  though  it  may  perhaps  be  sufficient  to  file  the  bill  of  ex- 
ceptions, and  make  a  memorandum  in  the  docket  entry  of  the  case, 
thus: 

Bill  of  exceptions  of  the  plaintiff  [or  defendant,]  mnde  out,  signed 
and  sealed  by  me,  on  the  trial  of  this  cause,  and  filed  and  made  a 
part  of  the  record  and  docket  entry  herein,  &;c. 

(h)  1  J.  J.  Marsh.  Rep.  53. 


§1,  (D).]  JURY  TRIALS BILL  OF  EXCEPTIONS.  101 

But  if  the  justice  does  not  enter  the  bill  in  full,  but  merely  makes 
the  above  entry  on  his  docket,  he  should,  perhaps,  to  save  all  cavil- 
ing, when  he  makes  out  a  transcript  of  the  docket  entries,  and 
comes  to  the  above  entry  as  to  the  bill  of  exceptions,  copy  that 
memorandum  or  entry,  and  add  the  following  thereto  —  "which  is 
in  the  words  and  figures  following  to  wit:"  and  then  copy  out  the 
bill  of  exceptions  in  full. 

If  the  bill  of  exceptions  is  a  naked  statement  of  facts,  and  does 
not,  in  connection  with  the  record,  show  that  the  matter  excepted 
to  was  material,  nor  that  any  injury  was  sustained  by  reason  of 
the  decision,  no  foundation  will  be  laid  for  a  reversal  of  the  judg- 
ment." For  the  bill  of  exceptions  should  point  out,  or  it  should 
otherwise  appear  from  the  record,  that  the  party  excepting  is  pre- 
judiced by  the  decision.*^ 

It  is  said  the  exceptions  are  defective,  if  they  merely  show  that 
the  justice  expressed  an  opinion  that  certain  evidence  would  be 
inadmissible  or  insufficient,  without  showing  that  the  evidence  was 
offered  and  rejected,  or  received  and  ruled  to  be  insuffcient.^ 

If  the  exceptions  are  so  defectively  di'avvn  that  it  cannot  be  as- 
certained whether  there  were  error  or  not,^  the  judgment  will  not 
be  disturbed. 

If  exception  is  taken  to  the  refusal  of  the  justice  to  instruct  the 
jury  in  the  manner  requested,  the  bill  must  set  forth  so  much  of  the 
evidence  as  to  show  that  the  desired  instruction  was  proper  in  the 
case.  But  if  the  exception  is  to  the  law  as  announced  by  the 
justice  to  the  jury,  it  is  not  necessary  to  set  forth  the  evidence  upon 
which  the  instruction  of  the  justice  to  the  jury  was  based.'' 

Where  parol  evidence  is  excluded,  which  might  be  proper  when 
connected  with  a  record,  the  bill  of  exceptions  should  state  that 
such  record  was  offered;  otherwise  it  will  be  presumed  that  the 
parol  evidence  alone  was  offered.' 

If  the  bill  refer  to  a  paper,  and  does  not  set  it  out  or  describe  it, 
the  paper  will  form  no  part  of  the  recoi'd,  and  a  certiorari  will  not 
be  issued  to  bring  up  a  copy.'' 

No  facts  should  be  inserted  in  the  bill  that  are  not  necessary  to 
present  the  question  of  law  decided  and  excepted  to,  unless  it  be 
matter  which  may  be  reasonably  insisted  on  as  a  waiver  of  the  ex- 
ception.' 

If  the  bill  of  exceptions  is  not  signed,  or  a  seal  is  not  annexed 
to  the  signature  of  the  justice,  it  will  be  a  nullity."" 

It  seems  a  mandamus  lies  to  compel  a  court  to  amend  a  bill  ac- 
cording to  the  truth  of  the  case."  But  on  complaint  that  a  bill  of 
exceptions  is  erroneously  settled  by  the  justice,  it  seems  proper  to 
first  refer  it  back  to  him,  to  be  reviewed. "^ 

The  justice  need  not  prepare  the  bill  of  exceptions.     If  it  is  not 

(c)  7  O.  R.  Prt.  1,212;  40.R. 79.388.  (i)  4  Rand.  Rep.  317;  5  Rand.  Rep.  666; 

(il)  I(l.il>.  4  Munf.  373. 

(c)  8  Greenl.  Itep.  19.  (1)  8  Cow.  Rep.  123. 

(g)   1  Aik.  Kep.  24.  380.  (m)  Slat.  53.i,  $135;  2  liar.  4-  J.  345. 

(h)  1  Stew.  ,!^  Port.  71.  (n)  5  Wend.  Rep.  132,  n.  4  O.  R.351. 

(k;  Minor's  Rep.  413.  (o)  5  Wend.  Kep.  132. 


102  DECISION  OF  A  CAUSE — 'JUDGMENTS.       [Pi't.  1,    Ch.  16, 

true,  he  slioulJ  not  sign  it;  nor  until  made  out  correctly,  will  he  be 
bound  to  sign  it.^ 

If  all  the  evidence  given  at  the  trial  is  contained  in  the  bill  of 
exceptions,  and  only  [)art  of  the  evidence  is  excepted  to,  the  party 
cannot,  u|)«)n  certiorari,  object  to  the  other  evidence  stated  in  the 
bill;  he  must  be  confined  to  the  points  excepted  to.*" 

(E)   The  decision  of  a  cause  by  a  justice. 

Before  deciding  a  cause  the  justice  must  make  up  his  mind  in  re- 
lation to  what  foots  are  satisfactorily  proven,  and  what  are  not. 

In  arriving  at  a  conclusion  as  to  what  the  real  facts  in  a  cause 
are,  he  must  take  into  consideration  the  character  of  the  witnesses 
—  their  disinterestedness  and  freedom  from  bias  and  prejudice,  and 
their  opportunity  of  knowing  the  facts  about  which  they  testify. 

Although  the  magistrate  cannot  substitute  in  the  place  of  proof, 
his  own  j)revious  knowledge  of  the  facts,  or  his  previous  conjectures; 
yet  it  would  be  a  violation  of  his  duty  and  of  his  olhcial  oath,  to  make 
up  his  decision  upon  testimony  which,  from  the  character  of  the 
witnesses,  connected  with  other  proof,  he  believes  not  to  be  true. 

If  any  question  of  law  arise  out  of  the  facts,  the  justice  must  be 
careful  to  apply  the  right  rule  to  them,  and  distinguish  between  a 
general  rule  and  its  exceptions.  To  become  accjuainted  with  the 
law,  is  one  thing;  to  know  where  and  how  to  apply  it  after  it  is 
known,  recjuires  more  good  sense,  reflection  and  discrimination, 
than  those  persons  suppose,  who  are  unable  to  account  for  honest 
dirterence  of  opinion  amongst  its  professed  students  and  expounders. 
The  great  difficulty  to  be  encountered,  is,  to  know  whether  a  par- 
ticular rule  is  applicable  or  not.  When  a  serious  doubt  of  this  kind 
exists,  and  the  application  of  the  rule  will  do  injustice,  that  doubt 
should  induce  the  justice  to  do  what  is  right  and  just  without  re- 
garding the  rule;  for  it  is  probable  that  the  rule  was  not  intended 
for  the  case  in  hand. 

Yet  prescribed  rules  of  law  never  can  be  so  specific  and  perfect 
as  to  always  operate  justly  in  their  practical  application:  they  must, 
however,  be  followed,  whatever  may  be  the  consequences  to  the 
parties,  when  clearly  applicable  to  the  case  in  hand. 

After  the  evidence  is  closed,  and  even  after  the  cause  has  been 
argued  by  the  parties  or  their  agents,  the  justice  may  permit  fur- 
ther evidence  to  be  given;"  but  neither  party  can  claim  this  as  a 
right;  nor  can  a  justice  at  this  stage  of  the  cause  continue  over  the 
trial  for  another  day,  except  by  the  consent  of  both  parties. 

Sec.  II. OF  THE  NATURE,  EFFECT,  AND  FORM  OF  JUDGMENTS. 

{A)  Of  the  nature.,  effect.,  and  form  of  judgments  of  Nonsuit. 

After  a  judgment  of  nonsuit,  the  plaintiff  may  bring  another  ac- 
tion for  the  same  cause;  but  if  a  judgment  be  once  given  upon  the 

(p)  4  O.  R.  351;  4  Pet.  R.  102.  (r)  7  Johns.  Rep.  306;  4  Cow.  450. 

(q)  7  Pick.  Rep.  139;  1  Wend.  Rep.  418;  11  VVlieu.  199 


§1,(E),2,(A),(B),(C).]  jur^MENTs.  103 

merits  of  the  cause,  the  plaintiff  is  forever  barred  from  suing  the 
defendant  upon  the  same  ground  of  complaint. 

The  plaintiff  may,  upon  the  trial,  but  not  after  the  justice  has  de- 
cided the  cause,  elect  to  be  nonsuited  in  order  to  have  an  opportu- 
nity of  bringing  it  again  in  another  shape,  or  when  better  prepared 
with  evidence. 

If  on  the  trial,  the  plaintiff's  testimony  does  not  support  his  ac- 
tion, the  justice  may  render  judgment  of  nonsuit  without  hearing 
the  evidence  of  the  defendant.^' 

FORM  OF  JUDGMENT  OF  NONSUIT. 

After  stating  the  reaaon  ivhy  a  judgment  of  nonsuit  is  entered^  as^ 
^'' The  plaintiff  failing  to  appear,"  or  "The  plaintiffs  having  failed 
to  prove  that  they  were  partners,"  o?-  "After  hearing  the  testimony 
of  the  plaintiff  and  being  of  opinion  that  it  is  not  sufficient  for  the 
plaintiff  to  maintain  his  action,  the  same  was  overruled,"  or  "It  ap- 
pearing from  the  testimony  that  the  suit  should  have  been  brought," 
here  stating  wherein  there  is  an  o?nission  or  mistake  in  the  names  of 
the  parties;  or  say^  "The  plaintiff  on  the  trial  electing  to  be  nonsuit- 
ed;" then  add;  whereupon  the  plaintiff  became  and  was  nonsuited. 

It  is  therefore  considered  by  me  that  the  defendant  go  hence, 

without  day,  and  recover  of  the  plaintiff dollars cents, 

his  costs  herein  taxed.(l) 

(B)  Of  the  Jiature^  effect^  and  form  of  judgment  of  Discontinuance. 

The  statute  of  this  State  seems  to  contemplate  that  judgments  of 
discontinuance  will  sometimes  be  entered  by  a  justice. 

If  a  plaintiff,  after  the  commencement  of  a  suit,  desires  to  pro- 
ceed no  further  therein,  either  from  the  action  not  being  maintain- 
able, or  from  the  form  of  the  action  being  misconceived,  or  the 
wrong  parties  being  sued,  or  from  any  other  cause,  he  may  discon- 
tinue the  suit,  and  afterwards  sue  again,  or  not,  as  he  thinks  proper. 

The  plaintiff  may  discontinue  his  suit  at  any  time  before  the  jus- 
tice renders  judgment,*^ 

The  discontinuance  may  be  entered  in  the  form  following: 

June  5,  1850.  The  plaintiff  came  and  discontinued  his  suit.  It 
is  therefore  considered  that  the  defendant  go  hence  without  day, 
and  recover  of  the  plaintiff  his  costs,  taxed  at  —  dollars  —  cents.(2) 

(C)  Of  the  nature^  (ff^^ct^  and  form  of  a  judgment  on  the  merits. 

When  a  judgment  is  rendered  by  a  court  having  no  jurisdiction 
of  the  subject,  (as  if  a  justice  should  render  judgment  in  an  action 

(b)  12  Johng.  Rep.  299;  13  Id.  94.  365.  (c)  2  Sell.  Prac.  336. 

(1)  The  costs  inserted  in  a  judgment  are  only  those  of  the  party  recovering-  the 
judgTTicnt:  the  costs  of  tlic  purly  ag-ainst  wliom  judg-ment  is  rendered  must  be 
stated  in  a  scpanitc  clause  of  tlie  docket  entry,  and  indorsed  on  tlie  execution  and 
collected  by  the  officer  in  the  same  manner  and  at  the  same  time  wlien  tlie  judg'- 
ment  mentioned  in  tlie  execution  is  collected.     Stat.  405,  §49  and  50. 

(2)  See  in  relation  to  costs,   Part  I,  Chap.  17,  §4. 


104  JUDGMENTS.  [Prt.   1,   Ck.   16, 

of  slander,  or  the  like,)  it  is  totally  inoperative  and  void.  But  if  a 
court  render  judgment  in  a  cause,  over  the  subject  matter  of  which 
it  has  jurisdiction,  it  will  be  no  objection  to  the  judgment  that  the 
proceedings  were  irregular:  the  objection  can  only  be  made  on  a 
writ  of  error  or  certiorari 5*^  and  until  reversed,  the  judgment  is 
valid  and  binding. 

If  a  judgment  be  once  given  upon  the  merits  of  a  cause,  the  same 
plaintiH'is  forever  barred  from  suing  the  same  defendant  upon  the 
sa?/ie  contract,  or  ground  of  complaint.  We  liave  already  seen,(3) 
that  a  judgment  of  nonsuit  or  discontinuamx  docs  not  prevent  the 
plaintiff  from  again  suing,  in  the  sufue  right,  the  same  defendant  for 
the  sa//ie  cause  of  action. 

Not  only  the  plaintiff  is  barred  from  his  action  after  a  judgment 
has  once  been  given  upon  the  merits,  but  all  who  dh-ectly  claim  un- 
der hbn  or  the  defendant  an  interest  in  the  subject  matter  of  the 
suit,  as  assignees,  executors,  administrators,  or  heirs,  will,  in  gen- 
eral, be  equally  bound  by  the  judgment.* 

It  may  be  proper  here  to  state,  that  if  a  fact  has  been  found  true 
by  a  verdict  or  judgment  between  two  parties,  the  record  cannot 
be  received  in  evidence  for  or  against  a  third  person,  to  prove  the 
fact  found  by  the  verdict  or  judgment;  for  it  would  be  unjust  to 
bind  any  person  who  could  not  be  admitted  to  make  a  defence,  or 
to  examine  witnesses,  or  to  appeal  from  a  judgment,  which  he  might, 
if  he  had  an  opportunity,  show  to  be  erroneous.  And  therefore 
the  depositions  of  witnesses  in  another  cause,  in  proof  of  a  fact,  and 
the  judgment  of  the  court  on  facts  found,  although  evidence  against 
the  parties,  and  all  claiming  under  them,  are  not,  in  general,  to  be 
used  in  prejudice  of  strangers*^  and  third  persons. 

When  the  demand  of  a  party  is  submitted  to  a  jury  or  justice, 
and  they  see  fit  to  disallow  it,  either  for  wvant  of  suthcient  proof,  or 
for  any  other  cause,  a  verdict  and  judgment  thereon  is  conclusive; 
and  the  same  demand  is  barred  forever.^  If  a  defendant  afterwards 
discover  that  he  had  a  just  defence  to  an  action,  he  has,  in  general, 
no  remedy,*"  even  if  he  had  a  receipt  in  full  at  the  time  of  the  trial, 
which  he  omitted  to  produce.' 

So,  if  the  plaintiff's  claim  is  entire  and  undivided  in  its  nature,  as 
when  several  articles  of  goods  belonging  to  the  same  person,  are 
wrongfully  taken  at  one  time,  one  action  only  can  be  brought.''  As, 
where  the  plaintiff  brought  several  suits  for  three  barrels  of  pot- 
ashes, sold  at  the  same  time,  the  contract  was  held  to  be  entire,  and 
that  separate  suits  could  not  be  maintained  for  each  barrel.*  In 
such  case,  a  judgment  in  one  suit  w'ill  be  a  bar  to  the  other  actions. 
So,  a  constable,  on  an  attachment  against  A,  took,  at  one  time, 
three  bed  quilts  and  a  bed,  the  property  of  B,  w'ho  brought  a  suit 
against  him  for  taking  the  quilts  only,  and  a  trial  and  judgment 

(d)  Wright's  Rep.  348,  349;  3  Ohio  Rep.  306.      (h)  8  Jolms.  Rep.  470;  9  Id.  232. 

(e)  4  Rawie  Rep.  273.  (i)  2  E3.  Rep.  546. 

(f )  Rose.  Ev.  99.  (It)  15  Johns.  Rep.  432. 

(g)  2  Johns.  Rep.  210.  (I)  Id.  lb.  229. 

(3)  See  (.\)  and  (B),  of  this  section. 


§2,  (C).]  JUDOMENTS.  105 

were  had  thereon;  B  was  holden  barred  of  his  further  action,  not 
only  for  the  quilts,  but  for  the  bed  also;  for  here  was  one  indivisi- 
ble act,  constituting  an  entire  cause  of  action.""  If,  however,  the 
plaintiff"  have  two  separate  claims,  and  omit,  in  his  first  action,  to 
give  any  evidence  of  one  upon  v/hicli  he  might  have  recovered,  he 
will  not  be  prevented  thereby  from  suing  for  and  giving  evidence 
of  it  in  a  subsequent  action. "^ 

A  party  will  not  be  permitted  to  show  a  former  recovery  by  ver- 
bal or  parol  testimony;  but  the  record  or  docket,  or  a  certified  or 
sworn  copy  of  it  must  be  produced,  as  has  been  before  stated.°(4) 

But  a  recovery  in  a  former  action,  apparently  for  the  same  cause, 
or  apparently  for  a  different  cause,  is  not  conclusive  evidence  that 
the  subsequent  suit  is,  or  is  not,  brought  for  the  same  demand;  and 
either  party  may  prove  by  verbal  or  parol  testimony,  that  it  is 
brought  upon  another  and  distinct  demand,  which  was  not  submit- 
ted to  the  court  or  jury,  in  the  first  suit;  or  that  it  was  brought  for 
the  same  matter,  and  passed  upon;i'  and  this  may  be  proved  by  a 
juror  or  the  justice  who  tried  the  cause,  or  any  other  person. "^ 

If  the  judgment  is  upon  a  bond,  sealed  bill,  promissory  note,  or 
other  instmment  of  writing,  in  which  two  or  more  persons  are  joint- 
ly, or  jointly  and  severally  held  and  bound,  and  it  appears  from  ver- 
bal or  other  testimony,  that  one  or  more  of  those  bound,  signed  the 
same  as  surety  or  bail  for  his  or  their  co-defendant,  the  justice,  in 
entering  the  judgment,  must  certify  which  of  the  defendants  is  prin- 
cipal debtor,  and  which  is  surety  or  bail. ''(5) 

If  only  one  of  the  joint  and  several  obligors  be  sued,  he  (although 
in  fact  a  surety)  will  not  be  entitled  to  the  certificate  nor  any  bene- 
fit from  this  law,  as  there  can  then  be  no  principal  to  the  judgment, 
against  whom  to  issue  execution  in  the  first  instance. 


FORM  OF  JUrOMENT  FOR  PLAINTIFF  ON  THE  MERITS. 

June  5,  1846,  2  o'clock,  A.  M.  [or  P.  M.,  the  time  of  trial.']  The 
parties  appeared,  [or  if  the  defendant  did  not  appear.,  say.,  The  plain- 
tiff" appeared^  and  the  defendant  failed  to  appear,  arid  then  jiroceed  as 
follows^  trial  had ;  A S and  W S sworn  and  ex- 
amined as  witnesses  for  the  plaintiff",  [here  add.,  in  case  the  defendant 
proves  a  set  off  or  other  claim  which  should  be  allowed  to  him.,  and  I  do 
find. 

That  the  defendant  owes  the  plaintiff"        ,         .         .         .       $'100 
That  the  defendant  is  entitled  to  an  allowance  of   .         .         .       50 


Leaving  a  balance  due  the  plaintiff'  off"      ....         ^50 

(m)  15  Johns.  Uep.  432,  and  136.  (p)   16  Johns.  Rep.  136;  3  Cow.  Rep.  120. 

(n)  6  T.  R.  607;  4  Id.  146;  15  Eng.  C.  L.  Rep.  (q)  WriRhi's  Rep.  261.  268. 

387;  13  Johns.  Rep.  227.  (r)  Stat.  511,  $30. 
(o)  3  Ohio  Rep.  271. 

(4)  Upon  this  subject,  see  pages  79  and  80. 

(5)  As  to  the  fbiTii  of  an  execution  against  the  principal  and  surety  in  such  case, 
see  Part  1,  Chap.  23,  §6. 

14 


'l06  JUDGMENTS.  [Pw.  1 ,   67*.  1 6,  §2,  (C).] 

and  then  proceed  with  the  judfrjnmt^  as  follows  •]  It  is  thereupon  con- 
sidered by  nic  that  the  phvintill' recover  ol' the  defendant  the  sum  of 

doUars,  [_n-rite  out  this  amount  instead  of  putting  it  injigurcsl^ 

witli  his  costs  herein  taxed  at dollars cents.(6) 

When  the  suit  is  against  two  or  more,  some  of  whom  appear  to 
be  surety  for  a  co-defendant,  add,  after  entering  the  judgment 
against  all  the  co-defendants,  the  i'ollowing:  '-It  is  hereby  certified 

that  the  above  named  C D is  sure'ty  for  his  co-defendant, 

E F ,  who  is  the  principal  debtor." 


FORM  OF  JUDGMENT  ON  THE  MERITS,  FOR  DEFENDANT  AGAINST  THE  PLAIN' 

TIFF,  FOR  COSTS. 

June  5,  1846,  2  o'clock,  A.  M.  [or  P.  M.  the  time  of  trial]     The 

parties  appeared,  trial  had;  A S and  C D sworn 

and  examined  as  witnesses  for  the  defendant.  It  is  thereupon  con- 
sidered by  me  that  the  plaintiff  hath  no  cause  of  action  nor  claim 
in  the  premises  against  the  defendant,  and  that  the  defendant  reco- 
ver of  the  plaintiff  his  costs,  herein  taxed  at dollars cents. 


FORM  OF  JUDGMENT  ON  THE  MERITS,  IN  FAVOR  OF  THE  DEFENDANT,  FOR  A 

BALANCE  DUE  HIM. 

June  5,  1850, o'clock,  P.  M,  [the  time  of  trial.']     The  parties 

appeared,  trial  had;  A S and  W S sworn  and 

examined  as  witnesses  for  the  plaintiff,  and  R T for  the 

defendant:  I  do  find  the  claim   of  the  defendant  in  the  premises 

to  be I'lOO 

and  that  of  the  plaintiff  to  be         -    - 90 

Leaving  a  balance  due  the  defendant  of  -  -  -  -  ^\0 
It  is  therefore  considered  by  me,  that  the  defendant  recover  of  said 
plaintiff  said  balance  of  ten  dollars,  with  his  costs,  herem  taxed  at 
dollars cents.(6) 


(6)  See  as  to  the  costs,  Part  1,  Chap.  17,  §4. 


CHAPTER  XVII. 


FEES  AND  COSTS. 


SECTION    I,       ITEMS  OF  THE  FEES  OF  THE  JUSTICE;    AND  HEREIN, 

(A)  For  issuing  writs. 

(B)  For  entries  upon  the  docket. 

(C)  For  certificates.^  copies.,  and  oaths. 

(D)  Miscellaneous  fees  of  the  Justice. 

II.  ITEMS  OF  THE  FEES  OF  A  CONSTABLE. 

III.  FEES  OF  WITNESSES  AND  ARBITRATORS. 

IV.  HOW  THE  COSTS  IN  CIVIL  PROCEEDINGS  SHOULD  BE  TAXED,  AND 

MAT  BE  RECOVERED. 

V.  HOW  THE  FEES  OF  THE  JUSTICE,  CONSTABLE,  AND  WITNESSES, 

IN  CRIMINAL  CASES,  MAT  BE  RECOVERED;    AND  HEREIN, 

(A)  As  to  the  fees  of  the  Justice. 

(B)  As  to  the  fees  of  the  constable. 

(C)  As  to  the  fees  of  witnesses. 

(D)  When  such  fees  are  paid  by  the  county. 


Sec.  I — ITEMS  OF  the  fees  of  the  justick. 


(A)  For  issuing  writs.^ 

Capias  or  summons. 
Mittimus  to  commit  to  jail, 
Subpoena  for  one  person,    . 

for  each  person  in  addition,   . 
Execution, 

Attachment,      .... 
Venire  for  a  jury,  , 

Restitution,  in  forcible  entry  and  detainer. 
Scire  facias. 

Warrant  in  a  criminal  case. 
Search  warrant, 


CIMTI. 

12i 
25 
12i 
4 
25 
25 
25 
25 
25 
25 
25 


(s)  Stat.  39R,  S99. 


108  FEKS    AND    COSTS.  [PlL  1,   Cft.  17, 


Cents. 


Cents. 


(B)  For  entering  vpon  the  docket^" 

An  adjouniinent  Jit  tlie  request  of  either  party,  .  .          10 

Reference  to  arbitrators,  .  .  .  .  10 

Jiuliinient  on  trial,  .  .  •  •  .2.5 

Judgment  on  confe.ssion  or  default,       .  .  .  124 

Discontinuance  or  satisfaction,        .  .  .  .10 

(C)  For  certificates^  copies^  and  oaths^     - 

Certified  transcript  of  a  suit,  ,  .  .  .  SH 

Copy  of  rule  of  reference  to  arbitrators,  .  .  10 

Cert"ified  proof  of  nn  account  against  an  estate,     .  .  12i 

Certifying  and  administering  oath  upon  an  affidavit,     .  2.5 

Certificate  and  acknowledgment  of  deed  and  other  instrument,  25 
Administering  oath  to  witnesses,  jurors,  and  arbitrators,  each,     4 

(D)  MisceUaneoiis  fees  of  the  justice* 

Taking  recognizance  of  bail,  .  .  .  .25 

Marrying  and  making  return,  ,  .  .  .  |;1  50 

For  sitting  in  a  case  of  forcible  entry  and  detainer,  besides 

the  above  fees,**  .  .  .  •  .75 

When  depositions  are  taken,*^ 
For  issuing  subpoena  for  one  witness,         .  .  .124 

for  each  person  in  addition,  ,  4 

Swearing  each  witness,      .....  4 

Attachment  against  witnesses,  .  .  _  _        .  25 

For  each  hundred  words  contained  in  the  deposition  and 

certificate,        .  .  .  .  •  .10 

If  a  justice  do  not  set  up  in  his  office,  a  fair  table  of  his  fees, 
within  thi'ee  months  after  his  election,  he  is  liable  to  indictment  and 
the  forfeiture  of  five  doU.u-s  per  day  for  each  day  such  tnljle  of  his 
fees  is  missing  by  his  neglect."^ 

Sec.   II.  —  rrEMs  of  the  fees  of  a  constable.® 

Cents. 

Service  and  return  of  a  capias  and  of  a  warrant,    .  .         25 

Serving  summons  and  other  writs,  not  herein  named,  for 

each  person  named  therein,  .  .  .  10 

Copy  of  summons,  left  at  the  place  of  abode,         .  .  124 

Commitment  to  prison,  ....  25 

Serving  execution  on  body  and  goods,        .  .  .20 

Summoning  a  jury  on  dead  body,  including  mileage,    .  75 

For  all  moneys  made  on  execution,  .  .  4  per  cent. 

For  every  day's  attendance  upon  the  court  and  grand  jury,  ,$'1  00 
For  every  day's  attendance  before  a  justice  on  a  jury  trial,*^       50 

(a)T.Ptat.  398,  399.  (c)  Stat.  324,  $14.  (e)  Stat.  399,  404. 

(h)  Stat.  421,  $20.  '  (d)  Sfat.  402,  $37.  (f)  Stat.  534. 


§1,  (B),(C),(D),  2,  3.  4.]  FEES  AND  COSTS.  109 

Also,  five  cents  per  mile  for  traveling  to  serve  process,  or  to 
perform  other  official  duties,  to  be  computed  from  the  place 
of  service  to  the  place  of  return;  and  when  two  or  more 
persons  are  named  in  the  process,  mileage  must  be  compu- 
ted from  the  most  distant  place  of  service  to  the  place  of  re- 
turn, Tinless  such  persons  reside  in  opposite  or  different 
directions  from  the  place  of  return. 

For  writing  or  setting  up  such  advertisements  as  are  required 
by  law  to  be  written  or  set  up,^  .....       25 

The  constable  is  not  entitled  to  recover  on  mesne  or  final  pro- 
cess, any  fees,  unless  he  returns  on  the  writ  upon  which  any  charge 
is  made,  the  particular  itejns  of  such  charge.** 

The  constable  should  set  up  a  table  of  his  fees  in  his  office,  or  he 
may,  perhaps,  be  subjected  to  like  penalties  as  justices  who  neglect 
that  duty.(l) 


SfX.    ill. FEES  OF  WITNESSES,  JURORS  AND  ARBITRATORS. 

Witnesses  attending  before  a  justice,  whether  in  criminal  or  civil 
cases,  are  entitled  to  fifty  cents  in  each  case  in  which  they  are  sub- 
poenaed.' If  called  upon  to  testify  in  a  cause  in  which  they  are 
not  summoned,  they  are  entitled  to  twenty-five  cents.' 

When  a  cause  pending  before  a  justice  is  referred  to  arbitrators, 
they  are  entitled  to  sixty-two  and  a  half  cents  each  per  day,  for 
their  services,  to  be  taxed  and  collected  with  the  other  costs  of  the 
suit."^ 

Each  juror  is  entitled  to  receive  fifty  cents  at  the  hands  of  the 
successful  party,  which  is  allowed  to  the  latter,  in  the  taxation  of 
costs  against  his  adversary;  but  if  the  jury  do  not  agree,  the  party 
calling  the  jury  pays,  and  loses  the  jury  fee.^ 

Sec.  IV. HOW  THE    COSTS    IN    CIVIL    SUITS  AND    PROCEF.riNGS    SHOULD 

BE  TAXED,  AND  MAY  BE  RECOVERED. 

The  costs  made  or  caused  by  the  plaintiff,  and  those  made  or 
caused  by  the  defendant,  should  be  taxed,  and  their  amount  made 
out,  separately  on  the  docket.*" 

The  costs  inserted  in  the  judgment  are  only  those  made  or  caus- 
ed by  the  party  who  recovers  the  judgment.  The  costs  of  the  party 
against  whom  the  judgment  is  recovered,  are  indorsed  on  the  exe- 
cution, and  collected  by  the  officer,  in  the  same  manner  and  at  the 
same  time  that  the  judgment  mentioned  in  the  execution  is  col- 
lected."" 

(g)  Stat.  400.  $26.  (k)  Stat.  512,  $39. 

(h)  Id.  403,  $40.  (I)  Id.  535;  and  see  ante  p.  98. 

(i)   Id.  390,  $R.  (m)  Id.  405,  <\19,  50. 


(1)  Sec  the  preceding'  page. 


110  FEES  AND  COSTS.  [P/'i.  1,   C/l.  17, 

In  general,  the  costs  of  the  plaintiff  are  those  caused  by  the  issu- 
ing and  service  of  the  summons,  capias,  or  scire  facias,  and  the  pro- 
ceedings thereon;  the  issuing  and  service  of  such  subpoenas  as  he 
requires,  with  the  fees  of  his  witnesses. 

The  costs  of  entering  the  judgment  must  be  taxed  to  the  party 
in  whose  iavor  it  is  rendered. 

The  costs  of  an  adjournment  (10  cents.)  should  be  taxed  to  the 
party  who  recjuests  the  adjournment. 

If  the  adjournment  is  by  consent,  and  no  agreement  made  by 
the  parties  in  relation  to  the  costs,  it  shoiild  be  taxed  against  the 
plaintiff. 

When  summons  is  served  by  copy  left  at  the  defendant's  dwel- 
ling house,  and  the  cause  is  afterwards  adjourned  while  he  is  absent 
and  for  his  benefit,  and  he  has  no  agent  present  at  the  adjournment 
wlio  is  authorized  to  appear  for  him,  no  fees  for  the  adjournment 
can  be  charged. 

In  other  cases,  it  should  be  taxed  to  the  party  at  whose  instance 
the  cause  was  adjourned.  The  practice  generally  prevails,  among 
magistrates,  to  adjourn  a  cause  without  making  any  order  in  relation 
to  the  fees  of  witnesses;  in  which  case  each  party  is  taxed  with  the 
fees  of  his  own  witnesses.  But  the  justice  may,  when  he  adjourns 
a  cause,  state  on  his  docket  w'ho  shall  pay  the  costs  of  the  adjourn- 
ment, and  the  fees  of  the  witnesses  in  attendance;  and  an  execution 
may  be  issued  therefor.  When,  however,  an  adjournment  is  grant- 
ed for  more  than  twenty  days,  the  costs  of  the  adjournment  must 
be  paid  in  advance.*" 

The  defendant  may  be  taxed  with  the  issuing  and  service  of  all 
process  which  he  orders,  the  recognizance  for  stay  of  execution,  and 
the  costs,  as  has  already  been  stated,  of  such  adjournments  as  are 
granted  at  his  request  or,  (in  his  absence.)  for  his  benefit. 

Each  party  is  liable  for  the  costs  by  him  made  or  caused,  though 
judgment  be  not  entered  against  him  for  the  same;  and  they  may 
be  recovered,  if  not  by  execution  directly  upon  the  judgment,(3)  at 

(m)  Stat.  510,  <»23. 


(3)  The  statute  of  Ohio  [Slal.  405,]  provides:  "That  the  clerk  or  justice  of 
the  peace  issuing'  execution  upon  a  judgment,  shall  indoree  thereon  the  amount 
of  the  costs  of  the  party  condemned,  which  costs  shall  be  collected  by  the  officer 
to  wliom  such  writ  may  be  directed,  in  the  same  manner  and  at  the  same  time  in 
which  the  judgment  mentioned  in  the  execution,  shall  be  collected. 

•'  §4.  When  the  party  recovering  shall  neglect  to  sue  out  execution  immedi- 
ately, or  after  such  execution  shall  have  been  returned  without  satisfaction  of 
costs,  the  clerk  may,  for  his  own  benefit,  or  shall,  at  the  instance  of  any  person 
entitled  to  fees  in  the  bill  of  costs  taxed  against  either  party,  and  by  order  of  the 
court,  issue  against  the  party  indebted  to  such  clerk  or  other  person  for  such  fees, 
whether  plaintiff  or  defendant,  an  execution  to  compel  the  party  to  pay  his  own 
costs." 

The  statute  then  prescribes  the^form  of  an  execution  from  a  court  of  common 
pleas  to"compel  either  party  to  pay  his  own  costs.  It  was  probably  the  intention 
of  the  legislature  to  give  aj  justice  power  to  issue  execution  in  the  mode  above 
mentioned,  for  costs,  after  an  execution  has  been  issued  against  the  party  con- 
demned in  tlic  action  and  returned  unsatisfied.     But  whether  courts  will  give  this 


§4,  6,  (A).]  FKKS  AND  COSTS.  1  1  1 

all  events  by  suit.  But  if  suit  be  brought,  each  person  or  officer,  to 
whom  fees  are  due,  must  bring  separate  actions,  and  will  recover 
his  own  fees. 

The  payment  of  fees  may  be  refused,  if  a  bill  of  particulars, 
signed  by  the  officer,  and  a  receipt  or  discharge,  be  not  made  out, 
when  required." 

Sec.  V. — HOW  fees  in  criminal  cases  may  be  recovered.(4) 

(A)  As  to  the  fees  of  the  justice. 

When  complaint  is  made,  of  fear  of  injury  to  person  or  property, 
and  the  accusation  is  not  established,  judgment  is  rendered  in  the 
name  of  the  State,  against  the  person  complaining,  for  the  costs  of 
prosecution,  which  are  collected  by  execution,  as  in  civil   cases." 

In  all  cases  for  crimes  or  offences,  instituted  before  a  justice,  in 
which  he  has  power  to  fine,  he  may  render  judgment  for  the  fine, 
and  tax  such  costs  for  himself,  the  constable  and  witnesses,  as  are 
or  may  be  allowed  by  law  for  similar  services  in  other  criminal 
cases,  and  issue  execution  therefor.  If  such  costs  cannot  be  col- 
lected from  the  defendant,  then,  and  not  before,  they  must  be  paid 
by  the  county  on  the  order  of  the  auditor,? 

(n)  Stat.  403,  $38,  (o)  Id.  539,  §14.  (p)  Id.  540,  $24. 


construction  to  the  statute,  may  be  uncertain.  The  form  of  an  execution,  how- 
ever, is  here  given. 

Form  of  an  execution  to  compel  either  parti/  to  pay  his  own  costs. 

The  State  of  Ohio, County,  ss. 

To  any  constable  of  the  Township  of ,  greeting-: 

Whereas,  in  a  certain  action  of  [here  mention  the  action  named  in  the  summons,'] 

lately  prosecuted  before  me,  G H ,  a  justice  of  the  peace  in  and  for 

said  township  and  county,  M'herein  A B was  plaintiff",  and  C 

D was  defendant,  the  costs  of*  the  said  A B [or  C D , 

as  the  case  may  he,]  were  taxed  at dollars cents. 

You  are  therefore  commanded,  that  of  the  goods  and  chattels  of  the  said  A 

B ,  [or  C D ,  as  the  case  may  be,]  you  cause  to   be  made  the  costs 

aforesaid,  with  the  interest  thereon  from  the  [here  insert  the  date  of  the  judgment,] 
until  paid,  and  the  costs  that  may  accrue;  and  of  this  writ  make  legal  service  and 
due  return. 

Given  under  mv  hand  and  seal,  this day  of ,  A.  D,  IS — . 

G H .    {Seal.) 

When  execution  is  issued  for  costs  adjudged  against  a  pai'ty  on  an  adjournment, 
the  above  form  may  be  used,   with  this  alteration:  at  the  *,   in.stead  of  the  word 

"of,"  insert,    ^'adjudged  against  the  said  A B ,  [or  C D ,  as  the 

c<;(sc  Traay /;e,]  on  adjournment,"     Slat.  400,   §53, 

(4)  "  In  all  criminal  cases  in  the  county  of  Hamilton,  prosecuted  in  the  name  of 
the  State  of  Ohio,  in  which  a  justice  of  the  peace  or  other  judicial  officer  has  pow- 
er to  impose  a  fine,  and  in  wiiicli  the  accu.sed  shall  be  convicted,  execution  shall 
be  issued  \\n-  the  fine  and  costs  of  prosecution;  and  in  all  cases  aforesaid,  wherein 
tiie  State  fails,  judgment  may  be  rendered  for  costs  against  tlie  ])arty  comjjlaining, 
and  execution  may  lie  issued  thereon:  but  the  costs  sh:dl  in  no  case  herein  con- 
templated, be  paid  out  of  the  county  treasury."     Stat.  S.'iH,  note. 


112  FEES  AND  COSTS.  [Prt.  1,  Ch.  17, 

In  prosecutions  foi'  crimes  other  than  those  to  keep  the  peace, 
and  in  whicli  the  justice  has  power  to  fine,  if  the  State  i'ail  in  any 
stage  of  the  i)rosecution,  eitiier  before  the  justice,  or  after  the  de- 
fendant is  committed  to  jail  or  recognized;  or  if  the  defendant  shall, 
after  conviction,  jirove  unable  to  ])ay  the  costs  of  prosecution,  the 
whole  costs  of  the  justice,  constable  and  witnesses,  must  be  paid 
by  the  county,  on  the  order  of  the  county  auditor;  and  the  justice, 
in  all  such  cases,  must  immediately  after  the  trial,  make  out  and  de- 
liver to  the  auditor,  a  certified  transcript  of  all  the  costs  that  have 
accrued  on  the  trial,  stating  how  much  is  due  to  the  justice,  con- 
stable, and  each  witness,  giving  his  name.''  The  auditor  has  a  right 
to  correct  errors  in  such  cost  bills.*^ 

But  in  these  cases  in  which  the  justice  has  power  to  fine,  if  the 
defendant  is  discharged,  the  justice  cannot  recover  his  costs  from 
the  county.  He  loses  his  costs  if  the  defendant  is  discharged,  un- 
less the  suit  be  bi'ought  by  an  informer  who  is  entitled  to  a  portion 
of  the  penalty;  in  which  case,  judgment  against  the  informer  may, 
in  general,  be  rendered  for  costs,  and  taxed  and  collected  as  in 
civil  cases.**  Officers,  however,  whose  duty  it  is  to  prosecute  for 
penalties,  are  not  liable  for  costs.^ 


(B)  As  to  the  fees  of  the  constable. 

The  constable  is  entitled  to  his  fees  from  the  county  in  all  crim- 
inal cases,  whether  the  State  fail  in  any  stage  of  the  prosecution  or 
not,  except  in  proceedings,  under  the  statute,  for  bastardy,  and  qui 
tarn  actions  of  debt,  brought  by  a  common  informer  for  a  penalty.® 
In  the  cases  last  mentioned,  the  constable  must  resort  to  the  judg- 
ment to  obtain  his  fees,  or  if  an  officer  whose  duty  it  is  to  prose- 
cute, be  the  informer,  he  must  lose  his  fees  if  the  defendant  be  dis- 
charged. 

When  a  person  is  charged  with  tiie  commission  of  any  crime  or 
offence  punishable  by  the  laws  of  this  State,  and  absconds  or  re- 
moves from  the  county,  a  constable  or  any  other  person  may  appre- 
hend the  person  so  charged,  and  remove  him  to  the  county  where 
the  offence  is  supposed  to  have  been  committed,  and  there  deliver 
him  to  any  judge  or  justice  of  the  peace.  The  auditor  of  the  coun- 
ty to  wdiich  such  removal  is  made,  must  allow  the  officer  or  other 
person  causing  such  removal,  all  necessary  disbursements  and  ex- 
penses, together  with  a  reasonable  compensation  for  his  time  and 
trouble.*'  To  entitle  any  one  to  this  pay,  there  must  be,  prior  to 
the  pursuit,  a  legal  charge  or  complaint  before  a  justice  of  the  peace 
or  other  judicial  officer,  and  not  a  mere  intention  to  make  a  charge, 
in  case  the  offender  be  apprehended.' 

(b)  Stat.  540,523.  (c)  Stat.  541,  $26. 

(c)  Td.  541,  $27.  (h)  M.  857,  $3. 

(d)  Id.  665,  577.  (i)    Wright's  Rep.  176. 


§5,  (B),  (C),  (D).]  FEES  AND  COSTS.  1  1 3 


(C)  Of  the  fees  of  loitnesses. 

They  are  entitled,  in  all  cases  when  the  State  fails  in  the  prose- 
cution, or  when  the  party  convicted  proves  insolvent,  to  a  certifi- 
cate from  the  justice,  of  the  amount  of  their  fees,  which  is  presented 
to  the  county  auditor,  and  the  amount  paid  by  the  county.  But  in 
actions,  under  the  statute,  for  bastardy,  and  in  qui  tarn  actions  of 
debt,  brought  by  a  common  informer  for  a  penalty,  the  county  is 
not  liable  for  the  costs,  and  the  witnesses  must  resort  to  the  parties 
for  theii'  fees. 

(D)  When  fees  in  criminal  cases  are  paid 

The  statute  is  not  very  specific  upon  this  subject.  If  the  prose- 
cution fails  before  the  justice,  it  is  clear  that  the  county  auditor  will 
give  an  order  immediately.  But  if  judgment  is  rendered  against 
the  defendant  for  a  fine  and  costs,  execution  must  issue,  and  a  re- 
turn made,  of  no  goods,  after  proper  search  for  them,  or  some  other 
evidence  must  be  adduced  before  the  auditor,  to  satisfy  him  that 
the  costs  cannot  be  collected  from  the  defendant,  before  he  will  give 
an  order  on  the  county  treasury.^  If  the  prosecution,  however,  be 
such,  or  is  so  conducted  that  the  defendant's  case  goes  to  the  court 
of  common  pleas,  the  discharge  or  acquittal  of  the  defendant  will 
entitle  the  justice,  constable,  and  the  witnesses  who  attended  be- 
fore the  justice,  to  their  pay,  immediately  after  such  discharge  or 
acquittal.  But  if  judgment  is  rendered  in  the  court  of  common 
pleas  against  the  defendant,  execution  should  first  issue,  and  a  re- 
turn be  made  of  no  goods,  or  some  other  evidence  of  the  insolvency 
of  the  defendant  should  be  adduced  to  the  auditor,  before  he  will 
pay  such  costs.'' 

(k)  Stat.  540,  541. 


15 


CHAPTER  XVIIl. 


OF  THE  DOCKET;  AND  HEREIN, 


SECTION  I.         HOW  THE  ENTRIES  UPON  THE  POCKET  SHOULD  BE  MADE. 
II.       FORMS  OF  ENTRIES  UPON  THE  DOCKET;  AND  HEREIN, 

(^1)  When  siiit  is  hroiiglit  on  an  account — when  the 
defendant  fails  to  appear^  and  trial  had — wli-en 
judgment  is  rendered  for  the  plaintiff  on  the 
merits  —  tohon  tho  judgment  is  set  aside  and 
new  trial  had — loh  en  judgment  is  rendered  for 
the  defendant  on  the  merits. 

{B)  When  suit  is  on  a  note  and  a.  capias  issues — 
when  the  suit  is  by  partners.^  against  surviving 
partners — when  the  defendant  enters  into  a  re- 
cognizance upon  an  adjournment  —  when  the 
plaintiffs  fail  to  prove  they  are  partners — 
ivhen  a  nonsuit  is  entered. 

(C)  When  suit  is  brought  against  administrators — 
when  it  is  brougJit  on  a  bond — when  summons 
is  served  by  copy  left  at  the  dwelling  house  of 
the  defendant — when  a  set  off  is  allowed  to  the 
defendant — when  costs  are  recovered  against 
an  administrator. 

(D)  When  judgment  is  confessed. 

(E)  Docket  entries  when  there  is  a  jury  trial. 


Sec.    I. HOW  ENTRIES  UPON  THE  DOCKET  SHOULD  BE  MADE. 

Every  justice  of  the  peace  is  required  by  law  to  make  a  fair  and 
accurate  entry  of  all  actions  and  suits  instituted  before  him,  with 
his  proceedings  thereon.^  As  these  entries  are  often  reviewed  by 
courts  upon  certiorari,  it  is  important  that  they  should  be  carefully 
and  correctly  made.  If  a  justice,  when  he  first  enters  into  office,  is 
particular  in  this  respect,  he  will  save  himself  much  future  trouble 
and  mortification,  and  soon  habitually  make  the  entries  upon  his 
docket  without  omissions  or  errors.  In  this,  as  in  all  other  busi- 
ness, procrastination  is  not  only  in  itself  often  attended  with  serious 
consequences,  but  begets  habits  of  carelessness.  Whatever  is 
done  in  the  progress  of  a  cause,  should  be  immediately  entered  on 

(a)  Stat.  506,  $3. 


[Prt.  1,   C/i.  18,  §1.]  OF    DOCKET    ENTRIES.  115 

the  docket.  Each  cause  should,  in  general,  contahi  a  memoran- 
dum of 

First,  The  christian  and  surname  of  the  parties,  and  the  charac- 
ter in  which  they  sue  and  are  sued,  fully  expressed.(l) 

Second,  A  brief  statement  of  the  cause  of  action.(2) 

Third,  The  amount  of  the  debt  or  damages  claimed  by  the  plain- 
tiff. In  all  suits,  except  upon  a  bond  or  for  a  certain  sum  of  money 
secured  by  a  sealed  instrument,  the  claim  of  the  plaintiff  should  be 
stated  on  the  docket  and  in  the  writ  as  damages.  They  should  be 
fixed  at  such  an  amount  that  they  will  cover  the  whole  claim  and 
interest,  for  which  judgment  may  be  afterwards  rendered.  But 
where  the  suit  is  on  a  bond,  or  other  sealed  instrument,  for  the 
payment  of  a  certain  sum  of  money,  then  the  plaintiff  claims  the 
amount  due  as  a  debt,  and  the  entry  on  the  docket  and  in  the  writ 
may  be  accordingly. 

Fourth,  It  should  be  stated  that  the  bill  of  particulars,  and  the 
note  or  instrument  upon  which  the  suit  is  brought,  are  filed. 

Fifth,  The  time  when,  and  what  kind  of  process  issued,  to  what 
constable  delivered,  at  what  time  the  defendant  by  the  process  is  to 
appear.  If  the  plaintifi^  procure  a  capias,  by  making  oath  that  he 
will  be  in  danger  of  losing  his  debt  unless  the  defendant  be  arrested, 
that  fact  should  be  stated.  If  householders  or  freeholders  of  the 
county  are  sued  out  of  their  township,  the  cause  for  so  doing  should 
be  set  forth  on  the  docket.^ 

Sixth,  When  the  summons  or  capias  is  returned,  and  a  copy  of 
the  return  of  the  constable,  with  the  items  of  his  fees. 

Seventh,  When  subpcenas  were  issued,  for  which  party,  to  whom 
delivered,  the  names  of  the  witnesses,  and  the  return. 

Eighth,  The  adjournment,  if  any,  to  what  time,  and  the  pro- 
ceedings thereon.  If  the  suit  be  continued  more  than  twenty  days, 
(except  by  consent,  or  where  the  summons  is  served  by  copy  left  at 

(b)  Wright's  Rep.  709. 

(1)  Thus  — 

Mel  Bite,  as  administrator   of  "^ 
Kane  Lave,  deceased,  | 

Charles  Dame  and  James  Fife,    f 
partners  under  the  name  and    | 
firm  of  "C.  Dame  &  Co."      J 

(2)  When  suit  is  broug-ht  upon  an  instrument  of  writing-,  wliich  is  short,  it  will 
be  proper  to  copy  it  on  the  docket;  thus  — 

Suit  broug-ht  on  a  due  bill,  which  reads,  "Due  Abel  Bite,  fifty  dollars,  on  de- 
mand, wi'.h  interest. 

««Nov.  30,  1840.  CIIAULES  DAME." 

Wlien  the  writing-  is  too  long  to  copy,  then  state  its  date,  by  wliom,  and  to  whom 
made;  if  to  perform  some  act,  for  the  non-performance  of  which  the  suit  is  brought, 
state  what  that  act  is;  if  for  the  payment  of  money,  state  the  amount,  and  when 
payable.  When  suit  is  brought  on  an  account,  so  state,  and  its  amount:  if  for  a 
trespass  upon  real  estate,  it  would  be  sufficient  to  so  state  in  g-eneral  terms;  if  for 
taking  property,  or  for  any  other  wrong-  or  injury,  state  the  kind  of  property,  or 
the  natin*e  of  the  injury. 


116  OF    DOCKET    ENTRIES.  [P;-/.  1 ,  C//,  1 8, 

the  dwelling  house  or  place  of  abode  of  the  defendant,)  it  should  be 
stated  on  the  docket  that  it  was  done  ^'■upon  good  cause  shown  by 
affidavit,  and  on  the  payment  of  the  costs  of  the  continuance," 

Ninth,  Tiic  time  when  the  cause  was  tried,  the  appearance  of 
the  parties,  or  their  fiilure  to  attend;  the  judgment,  and  the  amount 
thereof  written  out  in  words,  and  not  in  iigures. 

Tenth,  The  costs  only  of  the  party  recovering  judgment  should 
be  carried  into  the  judgment;  and  the  costs  of  the  party  against 
whom  the  judgment  is  rendered,  should  be  stated  in  a  separate 
clause  of  the  docket.*^ 

Eleventh,  Who  appealed  and  when.  The  recognizance  for  an 
appeal,  or  for  stay  of  execution,  should  be  written  out  in  full. 

Twelfth,  The  time  w'hen  execution  was  issued  and  to  whom 
delivered,  when  returned,  and  a  copy  of  the  return. 

Thirteenth,  The  proceedings  against  the  bail  for  stay  of  execu- 
tion, &c. 

All  these  matters  should  be  stated  in  the  order  of  time  they  tran- 
spired. It  is  not  to  be  understood  that  the  proceedings  of  a  justice 
would  be  reversed  upon  certiorari  if  he  omitted  to  follow  any  one 
of  these  rules  in  making  up  his  docket.  Nothing,  however,  is  here 
directed  but  what  is  obviously  proper;  and  the  decisions  of  the 
court  of  common  pleas  in  the  different  circuits,  in  relation  to  this 
subject,  are  so  various,  that  the  safest  course  for  a  justice  to  pursue, 
is  to  do  as  the  statute  requires  —  "make  a  fair  and  accurate  entry 
of  all  actions  and  suits  instituted  before  him,  with  his  proceedings 
thereon." 

A  magistrate  may,  after  his  docket  is  made  up,  amend  it  accord- 
ing to  the  truth,*^  and  correct  mere  clerical  errors,  or  an  omission 
or  mistake  in  the  costs.  He  is  not  bound,  nor  ought  he,  to  state  on 
his  docket  the  evidence,  or  M'hat  testimony  was  overruled,  or  what 
the  parties  said  or  urged  before  him. ''(3) 

A  few  forms  of  entries  will  be  given  here,  to  illustrate  the  above 
directions,  and  the  reader  is  referred  to  the  index,  title,  "-^  Entries 
upon  the  docket,"  for  a  reference  to  the  numerous  forms  which  will 
be  found  under  their  proper  heads,  in  various  parts  of  this  work. 

(c)  Stat.  405,  $50.  (d)  1  Green.  195.  (e)  Wright's  Rep.  418. 

(3)  Unless  one  of  the  parties  file  a  Bill  of  Exceptions.  On  this  subject,  see 
ante,  page  98  to  102;  and  Siat  535. 


§1,2,  (A).] 


FORMS    OF    DOCKET    ENTRIES, 


117 


Sec.    II. FORMS  OP  ENTRIES  ON  THE  DOCKET, 

(A)  When  suit  is  brought  on  an  account — when  the  defeiidant 
fails  to  appear^  and  trial  had — when  judgment  is  rendered 
for  the  jAaintiff  on  the  77ierits — ivhen  the  judgment  is  set 

aside  and  neiv  tibial  Jiad — loheii  judgment  is  rendered  for 

the  defendant  on  the  merits. 


-B- 

vs. 
-D- 


Suit  brought  on  book  account.     Items  amount 
to  $'50.     Damages  claimed,  $65. 


Plaintiff's  costs  on  first  trial  and 

judgment. 
Jus.     Summons  125  cts. 

Admin,  oath,        4 

Istjudgmt.         25 
Cons.   Serv.  Sum.         10 

51i 

Plaintiff's  costs  on  second  trial. 
Swearing-  plaintiff       4  cts. 
Satisfaction  10 

14 


Defts.  costs  on  second  trial. 

Jus.     Adjournment         10  cts. 
2d  judgment         25 
Swearing  witness  4 

Witness  50 

89 


June  1,  1840. 

Bill  of  particulars  of  plaintiff  filed, 
and  summons  issued  and  delivered  to 
Israel  Jones,  constable,  for  appearance 
of  the  defendant  on  June  9th,  1840,  at 
10  o'clock,  A.  M. 

June  3,  1840. 

Summons  returned,  "Personally  serv- 
ed, June  2,  1 840,  by  reading  to  the  de- 
fendant. I,  JONES,  Cons. 

"Fees: 

"Service,  10  cts." 

June  9,  1840,  10  o'clocJc,  A.  M. 

Plaintiff  appeared — defendant  failed 
to  appear  —  trial  had  —  the  plaintiff 
swoi'n,  and  examined  as  to  the  validity 
of  his  book  account. 

It  is  thereupon  considered  by  me, 
that  the  plaintiff  recover  of  the  defen- 
dant the  sum  oi  Jiftij-one  dollars,  twen- 
ty-tivo  cents,  and  his  costs,  herein  taxed 
B.t  Jifty-ojie  and  an  half  cents, 

June  18,  1840. 

Defendant  appeared,  paid  the  above 
costs,  and  on  his  application,  the  above 
judgment  was  set  aside,  and  cause  ad- 
journed for  trial  to  June  26th,  1840,  2 
o'clock,  P.  M, 

June  26,  1 840,  2  o'clocic,  P.  M. 

The  parties  appeared,  trial  had,  the 
plaintiff  sworn,  and  examined  as  to  the 

validity  of  his  book  account.      J 

A sworn  and  examined  as  a  witness 


118 


FORMS    OF    DOCKET    ENTRIES. 


[Prt.l,ChA8, 


tor  the  defendant.  It  is  thereupon  con- 
sidered by  me,  that  the  phiintiil"  hath 
no  cause  of  action  nor  chiim  in  the 
premises  against  the  defendant,  and 
that  the  defendant  recover  of  the  plain- 
tiff^is  costs  herein  taxed  at  eighty-nine 
ceiits. 


{B)  When  suit  is  on  a  note  and  a  capias  issues — when  the  suit  is 
by  partners^  against  surviving  partners — when  the  defen- 
dant enters  i^ito  a  recognizance^  upon  an  adjournment — 
lohen  the  plaintiffs  fail  to  prove  they  are  partners — lohen 
a  nonsuit  is  entered. 


Abel  Bite  and  Williajn  Bite.,  partners"^ 
under  the  name  and  firm  of  '•'•  W.  Bite 
<^-  Co." 

vs. 

Charles  Dayne  and  James  Fife.,  survi- 
ving partners  of  William  Dead.,  deceas- 
ed, late  partners  under  the  name  and 
firm  of  'J.  Fife  4^  Co.''' 


y  Damages,  $'60. 


Plaintiffs'  costs. 

Jus.      Swearing'  plaintiff 

4 

Capias 

12* 

Cons.    Serving-  Capias 

25 

Mileage,  3  m. 

15 

Satisfaction 

10 

Defendants'  costs. 
Adjournment 
Recognizance 
Judgment 


66i 


10 
25 
25 

60 


Suit  brought  on  note,  which  reads, 
"•For  value  received  we  promise  to  pay 
W.  Bite  <^'  Co.,  or  order,  fifty  dollars, 
on  demand,  with  interest  from  date. 
"J.  FIFE  &  CO. 

"June  1,  1840." 

December  2,  1 840. 

Bill  of  particulars  and  note  filed. — 
Beinsj  satisfied  from  the  affidavit  of 
Abel  Bite.,  that  [liere  state  the  ground. set 
forth  in  the  affidavit  upon  which  the 
capias  iixis  issued.~\  I  issued  a  capias 
against  the  defendants,  returnable  forth- 
with, and  delivered  the  same  to  Israel 
Jones.,  constable. 

December  3,  1840. 

Capias  returned  —  '^I  have  taken  the 
bodies  of  the  within  named  defendants. 

"1.  JONES,  Cons. 
"Fees:     Service,         25  cts. 
mileage,  3  m.  15 


40  cts." 


2§,(B),(C).] 


FORMS  OF  DOCKET  ENTRIES. 


119 


Parties  present;  and  thereupon,  on 
application  of  defendants,  the  cause 
was  adjourned,  at  their  costs,  for  trial 
on  the  5th  of  Dec,  1840,  2  o'clock, 
P.M. 

[Here  enter  the  recognizance  of  the 
defendants.(4)] 

December  5,  1 840,  2  o'docJc,  P.  M. 

The  plaintiffs  failed  to  appear:  the 
defendants  appeared,  trial  had,  and 
there  being  no  evidence  that  the  plain- 
tiffs were  partners,  under  the  firm  of 
"  W.  Bite  &L  Co.,"  and  the  defendants 
objecting  for  the  want  of  such  proof, 
the  plaintiffs  became,  and  were,  non- 
suited. It  is  therefore  considered  by 
me,  that  the  defendants  go  hence  with- 
out day,  and  recover  of  the  plaintiffs 
their  costs,  herein  taxed  at  sixty  cents. 


(C)  When  suit  is  hought  against  administrators — when  it  is 
brought  on  a  bond — ichen  a  summons  is  served  by  a  copy 
left  at  the  dwelling  house  of  the  defendant — ivhen  a  set  off 
is  allowed  to  the  defendant — when  costs  are  recovered 
against  an  administrator. 


A B , 

vs. 

C D ,  as  administrator  y    Debt,  ,$76. 

of  the  estate  of  W D 

deceased. 


Plaintiff's  costs. 
Jus.     Summons 
Judgment 
Swearing'  2  wit. 
Cons.     Serving'  sum. 
2  Witnesses 


12i 

25 

8 

12^ 
1   00 

1  58 


Suit  brought   on   a  bond   made  to 

A B ,  dated  May  1,  1839, 

signed  W D ,  for  $'150, 

conditioned  for  the  payment  of  $'75, 
six  months  after  date,  with  interest. 


July  5,  1840. 

Bill  of  particulars  and  bond  filed,  and 
issued  a  summons  for  the  appearance 


(4)  See  the  form,  Part  1,  Chap.  8,  §4. 


120 


FORMS  OF  DOCKET  ENTRIES.  [Prt.  1,   Ck.  18, 


Defendant's  costs. 
Jus.     1  Adjournment 

Swearing  witness 
Satisfaction 

1  Witness 


10 

4 

10 

50 

74 


of  defendant,  .Tuly  1 2,  1 840,  at  2  o'clock 
P.  M.,  and  delivered  the  same  to  Israel 
Jones,  Constable. 

July  8,  1840. 

Summons  returned — "Served  on  the 
7tii  da)- of  July,  1840,  by  leaving  an 
attested  copy  of  this  writ  at  the  defen- 
dant's dwelling  house,  in  the  presence 
of  his  wife,  and  informed  her  of  the 
contents,  the  defendant  being  absent. 
"ISRAEL  JONES,  Cons. 
"Fees:    Service,  12i  cents." 

July  12,  1840,  2  o'clock,  P.  M. 

Plaintiir  aj)peared;  but,  for  benefit 
of  defendant,  who  is  absent,  adjourned 
the  cause  until  July  30,  1 840,  2  o'clock 
P.M. 

July  30,  1840. 

Plaintiff  appeared;  and  the  defend- 
ant still  being  absent,  adjourned  the 
cause  until  August,  1 8,  1 840,  2  o'clock 
P.M. 

August  18,  1840,  2  o'clock  P.  M. 

The  parties  appeared:  the  plaintiff 
demanded  a  bill  of  the  particulars  of 
the  defendant's  set  off,  which  was  ac- 
cordingly filed;  and  on  application  of 
the  defendant,  the  cause  was  adjourn- 
ed until  August  20,  1840,  10  o'clock 
A.M. 

August  20,  1840,  10  o'clock,  A.  M. 

The  parties  appeared:  A B 

and  C D sworn  and  examined 

for  the  jilaintiff,  and  G R 

for  the  defendant;  and  I  do  Jind  that 
said  bond  iv as  presented  to  the  defendant 

as  a  claim  against  said  estate  of  JV 

J> ,  deceased,  for   the  amount  for 

which  judgment  is  hereinafter  rendered, 
within  one  year  after  said  defendant 
gave  bond  for  the  discharge  of  his  du- 
ties, *  and  that  lie  refused  to  refer  the 
same  to  arbitration,  pursuant  to  the  act 
to  provide  for  the  settlement  of  the  es- 
tates of  deceased  persons :  *  [or,  instead 


§2,  (C),  (D).]  FORMS  Oi"  DOCKET  ENTRIKS.  121 

of  the  statement  contained  betwen  the 
two  stars  (*  *),  say,  if  the  fact  be  so, 
and  that  its  payment  was  unreasonably 
resisted^  or  say,  and  that  its  paijment 
ivas  unreasonably  neglected.'\(5)  I  do 
also  find  that  the  amount  due  the 
plaintiff  on  said  bond,  with   interest, 

is |79  00 

That  the  estate  of  said  W 

D— —  is  entitled  to  a  set  off 

of 3  00 


Leavintr  a  balance  due  the)       ^«.s,„  „,, 
plaintifTof  I      *^^  ^'^ 

It  is  therefore  considered  by  me, 
that  said  plaintiff  recover  of  said  de- 
fendant as  said  administrator,  the  sum 
of  seventy-six  dollars,  [and  also  one 
dollar  fifty-eight  cents,  his  taxed  costs 
herein,]  to  be  levied  of  the  goods  and 

chattels  which  were  of  the  said  W 

D-^ ,  deceased,  at  the   time  of  his 

death,  in  the  hands  of  the  said  C 

D -,  yet  to  be  administered.(6) 


{D)   When  judgment  is  confessed. 


A B- 


vs,  >  Bill  of  particulars  filed. 

C D S 

Jan.  18,  1840. 

This  day  came  the  said  A B , 

Plaintiff's  costs.  and  also  the  said  C D ,  who 

Entering-  judgment        12^       waved  process,  entered  his  appearance 
Defendant's  costs.                         herein,  and   confessed  that  he  is  in- 
Entering  satisfaction       10         debted  to  said  A B in  the 

sum  of  two  hundred  dollars,  and  the 
parties  requested  me  to  render  judg-^- 
ment  accordingly,  and  for  costs:  it  is 
therefore  considered  by  me,  that  said 
A B recover  of  said  C 


(5)  If  the  facts  above  stated  in  italics  are  found  by  tlie  justice,  from  the  testi- 
mon}',  to  be  true,  lie  may  render  judgment  for  costs,  to  be  levied  of  the  property 
of  the  defendant  himself,  or  of  the  assets  in  his  hands  unadministcred,  as  shall  be 
just,  having  reference  to  Die  facts  that  appear  on  the  trial.  Scat.  355,  ^96.  If  he 
directs  tlic  costs  to  be  made  out  of  Uic  defendant's  own  properly,  the  defendant 
cannot  be  afterwards  repaid  out  of  the  estate,  but  will  lose  tiicm. 

(fi)  As  to  when  execution  may  issue  against  executors  and  adniiiiislrators, 
see  Stat.  355,  ^,95,  and  Slat.  p.  37h,  3ho,  ^81. 

ir, 


122  FORMS  Oi'  DOCKET  ENTKIES.    [PW.  1,  C/l.  1  8,  §2,  (E).] 

D said  sum  of  two  hundred  dol- 
lars, and  the  costs  herein  taxed  at 
twelve  and  a  hall"  cents. 

The  jurisdiction  of  a  justice  above  one  hundred  dollars  being 
special,  if  the  docket  does  not  show  a  case  for  the  special  jurisdic- 
tion, the  judgment  will  be  void.*^ 


(E)  Docket  entries  ivhen  there  is  a  jury  trial. 


June  8,  1841. 

The  parties  appeared;  and  defendant 
says  that  he  is  willing  to  confess  judg- 
ment herein  for  ,'^•50,  which  the  defen- 
dant refuses,  and  claims  ,*S;60,  and  de- 
mands a  jury.  Tiicreupon  the  parties 
duly  struck,  and  chose  the  following 
persons,  good  and  lawful  men,  &c.,  as 
jurors,  hereafter  mentioned,  and  venire 
issued  to  I J ,  Constable,  re- 
turnable, &c.,  to  June  lOth,  1841,  2 
o'clock.,  P.  M.  to  which  time  this  cause 
is  adjourned  for  trial. 

June  10,  1841,  2  o'clock,  P.  M. 

Venire  returned — [Jiere  copy  the  re- 
turn^ and  thereupon  came  the  said 
A —  H — ,  and  L —  C —  talesinan.^  \iiam- 
ing  the  jury  I]  who  were  duly  impannel- 
ed  and  sworn,  &c.  to  try,  &c.  and  de- 
livered to  me,  in  open  court,  their  ver- 
dict in  the  premises,  as  follows:  "We, 
the  jury,  find  the  diflerence,  &c.  in  fa- 
vor of  the  plaintiff.,  and  do  assess,  &c. 
therein,  in  favor  of  the  plaintiff.,  and 

against  tiie  defendant,  the  sum  of 

dollars cents."(l) 

(e)  Wright's  Rep.  716. 


(1)  When  a  set  off  is  allowed,  it  will  be  well  for  the  verdict  to  state  the  bal- 
ances, &c.  as  in  the  preceding  form,  (C),  ante  p.  121.  Tlie  verdict  in  the  above 
form  is  proper  on  claims  for  debts,  &c.  and  is  perhaps  good  in  almost  any  case, 
especially  where  the  name  of  the  action,  such  as  debt,  case,  &.c. ,  is  omitted  in  the 
docket  entries,  as  has  been  recommended;  [see  ante  p.  8;]  for  there  is  in  fact,  as 
the  oath  of  the  jury  shows,  [Stai.  534,  §127,]  no  technical  issue,  and  of  course  no 
pleadings  upon  wliich  the  verdict  is  predicated. 


CHAPTER  XIX. 


APPEAL. 


SECTION    I.       iN  WHAT  CASES  AN  APPEAL  MAY  BE  TAKEN. 

II.      AVITHIN    WHAT    TIME,    AND    FOR    WHAT    AMOUNT,    A    RECOGNI- 
ZANCE FOR  AN  APPEAL  MUST  BE  ENTERED  INTO. 
HI.    FORM  OF  A   RECOGNIZANCE  FOR  AN  APPEAL. 

IV.  OF  FILING,  &C.,  THE  ORIGINAL  PAPERS,  &C.,  IN  COURT, 

V.  HOW    TO    PROCEED    WHEN    THE    PARTIES  FAIL  TO  ENTER    THE 

APPEAL    IN    COURT,    AND    ALSO    WHEN     THE     COURT     HAVE 
ACTED  UPON  it;    AND  HEREIN, 

(A)  Hoiv  to  pi'oceed  ivhen  the  appeal  is  quashed  hy^ 

or  not  entered  in^  the  court  of  common  pleas, 

(B)  How  to  proceed  when  the  appeal  is  dismissed^  or 

judgment  rendered  against  the  appellant; 
with  the  for 7ns  of  scire  facias  and  docket 
entries. 


Sec    I. IN  WHAT  CASES  AN  APPEAL  MAY  BE   TAKEN. 

The  act*  <lefining  the  powers  of  justices  of  the  peace,  in  civil 
cases,  provides  ''•that  an  appual  shall  be  allowed  to  the  court  of 
conimon  pleas  from  the  final  judgment  of  any  justice  of  the  peace 
rendered  under  tlie  provisions  of  that  act,  except  from  judgments 
rendered  on  confession."* 

No  appeal  is  allowed  from  the  trial  of  the  right  of  property  taken 
on  execution  by  a  constable  or  sheriff.^ 

Some  statutes  impose  fines  or  penalties,  and  authorize  an  action 
of  debt  to  be  brought  for  the  same;  other  statutes  authorize  private 
individuals  or  public  officers  to  sue  in  their  own  name  for  such 
fines  or  penalties.  In  all  these  cases,  an  appeal  is  allowed,  if  no 
express  prohibition  is  interposed  by  the  legislature  in  the  statute 
creating  the  olicnce.'^  It  has  therefore  been  held,  that  an  appeal 
lies  from  the  judgment  of  a  justice  rendered  in  an  action  of  debt 
brought  by  the  supervisor  of  roads  to  recover  the  penalty  imposed 
l)y  statute,  for  obstructing  a  highway.*^  But  no  appeal  is  allowed 
in  ordinary  criminal  prosecutions  instituted  in  the  name  of  the  State, 
to  punish  individuals  for  a  violation  of  a  criminal  law,  unless  the 
statute  creating  the  oflence,  expressly  allows  an  appeal. 

(a)  Stat.  512,  ^40.  (c)  5  Ohio  Rep.  442,  Per  Wright,  ./.;  1(1.270; 

(li)  8  Ohio  Uep.  370.  Wright's  Rep.  314.     An  nppcnlls  nllowed 

(<I)  5  Ohio  Rep.  442.  in  all  nrtions  which  nie  in  form  civil. 


124  APi'BiAr..  [FrLl.C/i.Vy. 

No  appeal  is  allowed  iVtuii  llio  jiuln-inent  oi' a  justice  rendered  on 
an  award,  unless  the  parly  jH-ayinu;  the  appeal  die  an  afiidavit  with 
the  justice,  setting  Ibrth  that  the  award  was  obtained  by  fraud,  cor- 
ruption, or  othor'inidue  mcans.'=(l)  The  cases  in  which  an  appeal 
is  or  is  not  allowed  in  jury  cases,  lias  already  been  statcd.(2) 

When  judgment  is  obtained  against  a  sm'ety  for  the  debt  of  the 
principal  debtor,  and  the  former  obtains  judgment  against  the  latter 
for  the  same  debt,  the  principal  deUor  cannot  appeal  from  the  last 
mentioned  judgment.'^  So,  no  appeal  lies  frcmi  a  judgment  rendered 
in  an  action  of  forcible  entry  and  detainer.'' 

The  entry  of  bail  for  the  stay  of  execution  does  not  prevent  the 
defendant  from  appealing  from  the  judgment,  as  in  other  cases.* 


Sf.C.    II. WITHIN    WHAT    TIME,    AND    FOR    WlfAT  AMOUNT,  A  UFX-QGNI- 

ZANCK  for  an  APPKAL  must  be  ENTKIIED  INTO, 

An  appeal  can  be  taken  witiiin  ten  days  from  the  rendition  of 
judgment,  and  not  after.  Within  that  time  the  party  appealing 
must  enter  into  a  recognizance  to  the  adverse  party,  with  at  least 
one  good  and  sufficient  surety,  (who  must  sign  his  name  to  such  re- 
cognizance,) in  a  sum  not  less  than  fifty  dollars  in  any  case,  nor 
less  than  double  the  amount  of  the  judgment  and  costs;  conditioned 
for  the  payment  of  the  debt  or  d'an>ages  and  costs  that  have  accrued 
or  may  be  adjudged  against  the  appellant  in  the  court  of  common 
pleas.''  If  the  term  of  office  of  a  justice  expire  during  the  ten  days 
allowed  for  taking  an  appeal,  he  may,  notwithstanding,  take  the 
recognizance,  and  give  a  transcript  of  the  judgment.'' 

Sec.    III. FORM  OF  a  recognizance  for  AN  APPKAL. (.'^) 

In  the  action  of  A B against  C D ,  I,  K- 


l, ,  acknowledge  myself  [or  if  there  he  more  than  one  surety^  say^ 

^ve,  E T "and  K L ,  do  acknowledge  ourselves,} 

bail  for  the  appellant,  in  the  sum  of  [here  insert  at  hast  fifty  dollars^ 
and  not  h'ss  than  double  the  amount  of  the  judgment^  including  costs^ 
when  thejudgyncnt  and  costs  are  more  than  twenty  five  dollars^]  to  be 
levied  of  my  [or  our]  goods  and  chatties,  lands  and  tenements,  in 
case  the  appellant  shall  be  condemned  in  the  action,  and  shall  fail 
to  pay  the  condemnation  money,  and  costs  that  have  accrued,  or 
may  accme  in  the  court  of  common  pleas. 

[Signed^^  K L . 

Taken,  signed  and  acknowledged,  <jn  this  day  of  ,  in 

the  year ,  before  me,  G H ,  j.  i\. 


(e)  Stat.  512,^36.  (1>)  f?tat.  419,  ?^9.  (k)  Stnt.  ,512,  541. 

(g)  Id.  878,5.5.  (')  Wright's  Rep.  314.  (I)  Id.  526, 5108. 


(1)  Sec  Part  2,  Title  fi. 

(2)  See  ante  p.  98. 

(3)  This  form  will  be  foinid  in  Staf.  527. 


§i2, 3, 4, 5.]  APPEAL,  125 


Sec.    IV. OF  FILING,  &C.   THE  ORIGINAL  PAPERS,  &C.  IN  COURT. 

The  justice  must  make  out  a  certified  transcript  of  his  proceed- 
ings,(3)  including  the  recognizance  of  bail  taken  on  such  appeal, 
and  must,  on  demand,  deliver  the  same  to  the  appellant  or  his 
agent.'"(4) 

It  is  also  the  duty  of  the  justice  to  deliver  or  transmit  to  the  clerk 
of  the  court  to  which  the  cause  is  appealed,  on  or  before  the  second 
day  of  the  term,  the  bill  or  bills  of  particulars,  the  depositions,  the 
note,  contract,  writings,  and  all  other  original  papers,  if  any,  used 
on  the  trial  before  him." 

All  proceedings  before  the  justice  cease  and  are  stayed  from  the 
time  the  recognizance  is  entered  into;"  and  if  an  execution  is  out 
on  the  judgment,  it  must  be  recalled,''  by  giving  the  party  appeal- 
ing an  order,  directed  to  the  constable,  requesting  the  latter  to  re- 
turn the  writ,  &c.'i 

After  an  appeal  bond  has  been  duly  entered  into,  the  justice  has 
nothing  further  to  do  with  the  cause  until  he  receives  a  certificate 
from  the  clerk  of  the  court. 


Sec.    V. HOAV  TO  proceed  AVIIEN  the  parties  FAIL    TO    ENTER    THE 

APPEAL,  AND  ALSO  WHEN  THE  COURT  HAVE    ACTED    UPON 
it;    AND  HEREIN, 

(A)  How  to  jyrocced  ibhcn  the  appeal  is  quashed  hy^  or  not  entered 
in^  the  court  of  common  pleas. 

When  an  appeal  is  quashed  in  the  court  of  common  pleas,  by 
reason  of  some  irregularity  in  taking  or  perfecting  it,  the  cause  for 

(m)  Stat.  513,  U2.  (p)  Stat.  517,  «63. 

(n)  Id.  ib.;  1(1.530,5115.  (q)  Wright's  Rep.  163. 

(3)  As  to  the  form  of  the  certificate,  see  Part  1,  Cliap.  26,  §4. 

(4)  The  appellant  or  his  agent  must  deliver  the  transcript  to  the  clerk  of  the 
court  to  which  such  appeal  may  be  taken,  on  or  before  the  second  day  of  the  term 
thereof  next  following  such  appeal.     Stat.  513,  §43. 

If  the  appellant  fail  to  deliver  the  transcript  and  other  papers,  if  any,  to  the 
clerk,  and  have  his  appeal  docketed  on  or  before  the  second  day  of  the  term  of  the 
court  next  after  such  appeal,  the  adverse  party  may,  at  the  same  term  of  the 
court,  file  a  transcript  and  have  judgment  and  execution  in  his  favor  for  the  amount 
of  tlie  judgment  and  costs  rendered  by  the  justice,  together  with  all  the  costs  that 
have  accrued  in  court,-  or  the  appellee  may  in  such  case  have  the  transcript  entered 
in  court  and  dismissed  at  the  costs  of  the  appellant,  and  the  cause  remanded  to  the 
justice  to  be  thereafter  proceeded  in  as  if  no  appeal  had  been  taken.  Stat. 
51.3,  §45. 

If  tiic  plaintiff,  in  the  action  before  the  justice,  appeal  from  a  judgment  render- 
ed against  him,  and  file  the  transcrij)t  in  court,  and  afterwards  neglect  to  proceed 
in  the  cause,  the  court  will  render  judgment  and  award  execution  ag.ainst  him  for 
the  amount  rendered  by  the  justice,  with  tiie  interest  thereon,  and  the  costs  ii» 
court.  Slid.  514,  §'10.  The  person  appealing  from  a  judgment  rendered  in  his 
favor  must  pay  tiie  costs  on  the  appeal,  if  he  fail  to  recover  a  greater  sum  in  the 
court  of  common  pleas  tlian  the  amount  of  the  judgment  befoi-e  the  justice  licsidcs 
the  interest  and  costs  thereon.      Slat.  511,  §18. 


126  .\PPEAL.  [Prf.  1,  Ch.  19, 

quashing  is  stated  in  the  order  of  the  ct>urt,  and  a  transcript  of  such 
order  is  lodged  with  the  justice,  who  thereuj)on  must  proceed  to 
issue  execution,  in  tlie  same  manner  as  if  no  appeal  had  been  taken/ 

If  both  parties  fail  to  enter  the  appeal,  or  if  it  be  entered  and  dis- 
missed, the  court  of  common  pleas  will  remand  the  cause  for  further 
proceedings  before  the  justice,  who,  upon  receiving  the  certificate 
of  the  clerk  of  the  court  to  that  ctTect,  must  proceed  to  issue  execu- 
tion upon  the  judgment,  as  in  other  cases.' 

When  an  appeal  is  quashed  by  the  cour-t  of  common  pleas,  or  not 
entered  by  either  party,  the  sureties  are  not  lial)le  on  their  recog- 
nizance.' 


(B)  How  to  proceed  v^lien  the  appeal  is  dismissed^  or  judgment  ren- 
dered in  court  against  the  appellant^  ivith  fonns  of  scire 
facias  and  docket  entries. 

If  the  appeal  he  dismissed  or  judgment  entered  in  the  court  of 
common  pleas  against  the  appellant,  the  surety  in  the  recognizance 
of  appeal  will  be  liable  to  the  appellee  for  the  whole  amount  of  the 
debt,  damages  and  costs,  recovered  against  the  appellant/  When 
this  amount  does  not  exceed  one  hundred  dollars,  a  scire  facias 
should  be  issued  on  the  recognizance  by  the  justice,  and  proceed- 
ings had  in  like  manner  as  where  scire  facias  is  issued  against  bail 
for  stay  of  execution/' 

Before  suing  on  a  recognizance,  it  is  advisable  to  issue  execution 
on  the  judgment,  and  have  a  return  of  "-'no  goods  and  chatties;"  or 
if  judgment  has  been  rendered  in  the  court  of  common  pleas,  to 
issue  execution  therefrom,  and  have  a  return  of  "-no  goods,  chattels, 
lands  or  tenements/' 

When  the  surety  in  the  recognizance  is  insufficient,  or  his  testi- 
mony is  required  for  the  appellant,  or  when  the  recognizance  is 
insufficient  in  form  or  amount,  the  court  of  common  pleas  may 
order  a  change  or  renewal  of  such  recognizance,  and  diz'ect  that 
it  be  certified  to  the  justice  from  whose  judgment  the  appeal  was 
taken,  or  that  it  be  recorded  in  court/''  This  proceeding  by  the 
court,  in  cflect,  sets  aside  the  original  recognizance.  If  a  recogni- 
zance be  certified  to  a  justice,  he  may  proceed  upon  it  as  in  other 
cases. 

Writs  of  scire  facias  must,  in  general,  specify  a  certain  time 
not  exceeding  twelve  days  from  their  date,  and  a  certain  place,  at 
which  the  defendant  shall  appear  to  make  his  defence.*  They 
are,  in  general,  served  and  returned  in  the  same  manner  as  a  sum- 
mons.* 

(r)  Stat.  514,  ^51.  (t)  Stat.  514,  $49.  (w)  Stat.  514,  $52. 

(s)  I(1.ib.$47.  (v)  hi.  ib.  $50.  (a)  Id.  518,  $70- 


§5,(A),(B).]  APPEAL,  127 


FORM    OF    A    SCIKK     FACIAS    ON    A    RKCOGNIZANCE    WHEN    AN    APPEAL    IS 

DISMISSED. 

The  State  of  Ohio, Township, County,  ss. 

To  any  constable  of  said  township,  greeting: 

Whereas,  A B recovered  judgment  against  C D for 

the  sum  of  [Acre  insert  the  amount  of  tit e  judgment  and  costs^  on  the 
day  of ,  in  the  year, ,  as  appears  of  record;  and  where- 
as, K L ,  on  the day  of ,  in  the  year ,  became 

surety  on  the  appeal  of  said  judgment,  for  the  said  [Jiere  insert  the 
name  of  the  appellant^  in  the  sum  of  \Jtere  insert  the  amount  of  the 
appeal  hondi\  to  be  levied  upon  the  goods  and  chattels,  lands  and 

tenements,  of  him,  the  said  K L ,  in  case  the  said  appellant 

should  be  condemned  in  said  action  and  should  fail  to  pay  the  con- 
denmation  money,  and  costs  that  had  accrued,  or  might  accrue  in 
the  court  of  common  pleas,  as  appears  by  the  recognizance  of  the 

said  K L ;  and  whereas,  such  proceedings  were  had  on 

said  appeal  in  said  court  of  common  pleas,  that  said  court,  on  the 

day  of ,  A.  D.  18 — ,  did  *  dismiss  said  appeal,  at  the  costs 

of  said  appellant,  and  which  costs  are dollars cents,  and 

did  remand  said  cause,  for  further  proceedings,  to  me,  G H , 

a  justice  of  the  peace  in  and  for  said  township  and  county,  *  and 
whereas,  said  judgment,  interest  and  costs  remain  due  and  unpaid, 
and  said  appellant  hath  failed  to  pay  the  same,  as  is  alledged. 

This  is,  therefore,  to  command  you  to  summon  the  said  K 

L ,  to  be  and  appear  before  me,  at  my  office,  in  said  township 

of ,  on  the day  of ,  in  the  year ,  at o'clock 

A.  M.  \or  P.  M.  as  the  case  may  he^  to  show  cause,  if  any  there  be, 
why  judgment  should  not  be  rendered  against  him  for  the  [debt  or 
damages,]  interest  and  costs  aforesaid,  and  why  execution  should 
not  issue  therefor:  And  of  this  writ  make  legal  service  and  due 
return. 

Given  under  my  hand  and  seal,  this day  of ,  in  the 

year  18 — . 

G H ,  J.  p.  {Seal) 


FORM  OF  SCIRE  FACIAS  WHEN  JUDGMENT  IS  RENDERED  AGAINST  THE  APPEL- 
LANT IN  THE  COURT  OF  COMMON  PLEAS, 

Pursue  the  same  form  throughout  as  the  above^  except  leaving  out 
the  part  which  is  between  the  two  *6',  at  the  words  "did  dismiss,"  aiul 
•■■county  and,"  and  in  place  of  the  matter  iMween  the  two  *v,  irisert 
the  following:  "render  judgment  in  said  cause  so  appealed,  against 
said  appellant  and  in  iiivor  of  said  appellee,  lor  the  sum  of  [here 
insert  (he  amount  of  the  debt  or  damages  a?id  costs^  foiuul  bij  the 
courti]''' 


128  _  APPEAL.  [Z^/.^CA.  10,  §5,(B).J 


FORMS  OF  110CKET  ENTJllKS. 

All  the  subsequent  proceedings  in  the  suit  alter  the  recognizance 
oi"  appeal  is  given,  should  be  entered  on  the  docket  witii  the  ori- 
ginal cause. 

WHEN  AN  APPEAL  HAS  JJEEN  DISMISSED. 

Juhj  1,  1846.  Received  the  following  certificate:  [fwre  cojjy  the 
statement  and  certificate  of  the  clerk  of  the  court  of  common  pleas.'] 

June  5,  1846.     Execution  issued  against  the  appellant. 

July  2,  1846.  Execution  returned,  indorsed,  \Jiere  coj^y  iJir  rclnrii 
of  the  constable.'] 

July  5,  1846.      Issued  scire  facias  on  the  above  recognizance, 

against  K L ,  [tlie  surely.']  and  delivered  to  I J , 

constable,  for  appearance  July  14,  2  o'clock  V.  M. 

Juhf  6,  1846.  Scire  facias  returned,  '•^Personally  served  on  the 
5th  oi'  July.,  1846,  by  reading  to  the  defendant. 

"•'Fees .  I J ,  Constable."" 

July  14,  1846,  2  o'clock  P.  M.    The  parties  appeared,  *  trial  had, 

and  I  do  find  that  said  C D [the  appellant]  hath  failed  to  pay 

said  judgment,  &c.,  which  remains  due  and  unpaid,  and  no  good 
cause  being  shown  to  the  contrary,  it  is  considered  by  me,  that  said 

A B recover  of  said  K L the  sum  of  \Jiere  insert 

the  sum  total  of  the  original  judgment.,  interest  and  costs.,  or  so  much 
as  remains  unpaid.,]  and  his  costs  in  this  proceeding  on  scire  facias, 
taxed  at dollars cents. 

FORM,  AVHEN  JUDGMENT    IS    RENDERED    IN    THE    COURT    OF    COMMON    PLEAS 
AGAINST  THE  APPELLANT. 

Proceed  as  directed  in  the  preceding  form,  from"  the  commence- 
ment of  that  form  to  the  *,  except  as  to  the  issuing  of  execution,  and 
from  that  point  as  follows: 

Trial  had,  a  certified  copy  of  the  record  and  judgment  of  the  court 
of  common  pleas  of  this  county,  in  the  above  cause,  upon  appeal, 
produced,  w'hereby  it  is  found  that  said  court  rendered  judgment  on 

the day  of ,  1 8 — ,  against  said  C D ,  in  favor  of 

said  A B ,  for  the  sum  of  [here  insert  the  amount  for  ivhich 

judgment  was  rendered  and  costs;]  also,  was  produced  a  certified 
copy  of  the  execnition  issued  by  said  court  on  said  judgment,  and  the 

return  of  the  sherifl'of county,  \Jiere  insert  the  return  of  the  sher- 

ijf^]  whereby  it  appears  that  said  judgment  is  due  and  unpaid,  and 
said  judgment  debtor  having  failed  to  satisfy  said  judgment,  and  no 


[Pri.  1,   C/i.  20.]  CERTIORARI.  129 

cause  being  shown  to  the  contrary,  it  is  considered  by  me,  that  said 

A B recover  of  said  K L ,  the  sum  of  \]iere  insert 

tlie  sum  total  of  the  judgment  and  costs  in  the  court  of  common  pleas^ 
and  the  intej'est^  and  also,  his  costs  in  this  proceeding  on  scire 
facias,  taxed  at  —  dollars,  —  cents. 

After  judgment  has  been  obtained  upon  the  recognizance  of  ap- 
peal, the  surety  may  have  execution  on  the  original  judgment, 
against  the  goods  and  chattels  of  the  appellant.  In  such  case,  the 
justice  must  endorse  on  the  execution,  for  whose  use  it  is  issued.* 


CHAPTER  XX. 


CERTIOEARI. 


The  writ  of  certiorari  is  issued  by  the  court  of  common  pleas, 
commanding  the  justice  to  send  to  them,  sealed  up  and  inclosed  in 
the  writ,  a  certified  transcript  of  the  record  and  proceedings  then 
lately  pending  before  him.'' 

All  proceedings  on  the  judgment,  or  on  an  execution  which  may 
be  out,  are  superseded  from  the  time  the  clerk  of  the  court  takes  a 
certiorari  bond.*^ 

The  bond  is  generally  given  at  the  date  of  tho  writ,  and  must  be 
taken  by  the  clerk  of  the  court  before  thecfrri^Tari  issues;*^  conse- 
quently, the  fact  that  the  certiorari  has  issued,  is  sufficient  evidence 
that  the  bond  has  been  given. 

A  writ  of  certiorari  may  be  allowed  in  term  time,  by  the  court  of 
common  pleas  or  supreme  court,  on  cause  shown,  at  any  time  be- 
fore satisfaction  of  the  judgment;  provided  such  time  does  not  ex- 
ceed five  years  from  the  rendition  of  the  judgment.®  A  writ  of 
certiorari  may  also  be  allowed  by  a  judge  during  the  vacation  of 
the  court,  but  cannot  be  allowed  nor  issued  in  vacation,  after  the 
expiration  of  fifteen  days  from  the  day  the  judgment  was  rendered. 
If  issued  in  vacation  after  t'  at  time,  it  is  the  duty  of  the  justice  to 
disregard  it.^ 

If  the  judgment  of  the  justice  be  affirmed  by  the  court,  they  either 
certify  their  decision  to  him,  or  carry  the  judgment  into   effect 

(a)  Stat.  519,  $77.  (''.)  Stat.  515,  §5j. 

(h)  WilcoxV  Forms  and  Prac.  246.  (e)  Id.  lb.  $57. 

rr)  Stat.  515,  $5«.  (g)  Id.   lb.  $56. 
17 


130  CERTIORARI.  [Pl't.    1,    Ck.  20.] 

themselves.  If  they  certify  their  decision  to  the  justice,  by  their 
clerk,  execution  should  be  issued  on  the  judgment,  as  if  no  certio- 
rari had  been  allowed.^  In  general,  however,  the  court  retain  the 
cause,  and  render  final  judgment.*'(l) 

The  writ  of  certiorari  is  executed  by  the  justice  making  out  a 
copy  of  his  proceedings  in  the  cause,  and  annexring  thereto  his  cer- 
tificate,(2)  and  transmitting  them  to  the  court,  by  the  party  to  the 
suit  or  any  other  person,  inclosed  and  sealed  up  with  the  writ.' 


FORM  OF  THE  RETURN  TO  A  CERTIORARI. 

I  have  executed  this  writ,  as  will  appear  by  the  schedule  herewith 
inclosed. 

G H ,  J.  p. 

A  justice  ought  not,  before  or  after  a  certiorari  is  allowed,  to 
alter  his  docket,  except  to  correct  clerical  errors.''  He  should,  how- 
ever, copy  into  the  transcript,  the  bill  of  exceptions  that  is  made 
a  part  of  the  record. 

(g)  Stat.  516.  561.  (1)  Wilcox's  Forms  and  Practice,  247. 

(h)  Id.  lb.  $61,  62.  (k)  Wright's  Rep.  418. 

(1)  As  to  the  proceedings  in  court,  Stc,  on  a  certiorari,  see  Stat.  515,  516. 

(2)  For  the  form  of  the  certificate,  see  Part  1,  Chap.  26,  §4. 


CHAPTER  XXI. 


OF  THE  STAY  OF  EXECUTION. 


SECTION  I,         IN  WHAT  CASES  NO  STAY  OF  EXECUTION  IS  ALLOWED. 

If.        WHEN,  AND  FOR  WHAT  TIME  A  STAY  MAY  BE  ALLOWED. 

III.  OF  PROCEEDINGS   TO    OBTAIN    A    STAY,    AND    FORM  OF  THE  RE- 

COGNIZANCE. 

IV.  WHEN  AN  EXECUTION  MAY  ISSUE  NOTWITHSTANDING  THE  STAY. 

V.  OF  PROCEEDINGS  BY  THE  PLAINTIFF  TO  CHARGE  THE  BAIL  FOR 

STAY  OF  EXECUTION,  AND  FORM  OF  SCIRE  FACIAS. 

VI.  FORM     OF     DOCKET     ENTRY     AND    JUDGMENT    IN    PROCEEDINGS 

AGAINST  SURETY  FOR  THE  STAY  OF  EXECUTION. 

VII.  OF    PROCEEDINGS  BY  THE    PLAINTIFF  ON  THE    ORIGINAL    JUDG- 

MENT   AFTER  JUDGMENT,  &,C.,  AGAINST  THE  SURETY  FOR 
STAY  OF  EXECUTION. 

VIII.  OF  PROCEEDINGS  ON  THE  ORIGINAL  JUDGMENT  BY  THE  SURETY 

FOR  STAY  OF  EXECUTION. 


Sec.    I. IN  WHAT  CASES  NO  STAY  OF  EXECUTION  IS  ALLOWED. 

No  stay  of  execution  is  allowed  on  judgments  rendered  in  the 
following  cases,  namely: 

First.  On  judgments  rendered  against  any  justice  of  the  peace 
for  refusing  to  pay  over  money  by  him  collected  or  received,  in  his 
official  capacity.* 

Second.  On  any  judgment  rendered  against  a  constable  for  fail- 
ing to  make  a  return,  or  for  making  a  false  return,  or  for  refus- 
ing to  pay  over  any  money  collected  or  received  in  his  official 
capacity  .•* 

Third.  On  judgments  rendered  against  bail  for  the  stay  of  exe- 
cution.*^ 

Fourth.  In  cases  where  judgment  is  rendered  in  favor  of  bail 
who  have  been  compelled  by  judgment  to  pay  money  on  account 
of  their  principal.*^ 

(a)  Stat.  517.  $65.  (c)  Stat.  517,  $65. 

(b)  Id.  531.  517.  (d)  Id.  879,  $6. 


132  OF    THE    STAY    OF    EXECUTION.  [JP/7.  1,   C/i.  21, 

Fifth.  All  other  judgments  which  are  not  rendered  under  the 
provisions  of  the  act  defining  the  powers  and  duties  of  justices  of 
tlie  peace  and  constables,  in  civil  cases.® 

It  is  believed  that  no  stay  of  execution  can  be  allowed  in  ordi- 
nary criminal  prosecutions,  instituted  in  the  name  of  the  State,  to 
punish  individuals  ibr  a  violation  of  the  criminal  law.  Some  sta- 
tutes, however,  impose  fines  or  penalties,  and  authorize  an  action 
of  debt  to  be  brought  therefor;  other  statutes  authorize  private 
individuals  or  public  ofiicers  to  sue  in  their  own  name  for  certain 
penalties:  in  these  cases,  it  is  believed  that  a  stay  of  execution  must 
be  allowed.^ 


Sec.  II.  —  WHEN,  and  for  what  time,  a  stay  of  execution  may  be 

ALLOWED. 

In  all  cases  except  those  above  mentioned,  a  stay  of  execution 
may  be  allowed,  and  graduated  as  follows,*'  namely: 

First.  On  any  judgment  ^or  Jive  dollars^  and  under^  the  stay 
shall  be  for  sixUj  days  from  the  time  of  the  rendition  of  the  judg- 
ment. 

Second.  On  any  judgment  for  oyer  Jive  dollars^  and  under  twenty 
dollars^  the  stay  is  ninety  days. 

Third.  On  any  judgment  for  twenty  dollars^  and  under  Jifty  dol- 
lars., tliC  stay  is  for  r,..;  hundred  and  Jifty  days. 

Fourth.  On  any  judgment  {or  Jifty  dollars  arid  upwards.,  the  stay 
is  tu-o  hundred  and  forty  days. 

Fifth.  Where  judgment  is  obtained  (and  remains  unpaid)  against 
a  surety,  and  a  stay  is  taken  by  him,  and  he  obtains  for  his  security 
judgment  against  the  principal,  stay  of  execution  must  be  allowed 
on  the  last  mentioned  judgment  only  so  long  that  the  stay  will  ex- 
pire one  month  before  that  allowed  to  tlie  surety  on  the  judgment 
against  him.* 


Sec.  III.  —  OF  proceedings  to  obtain  a  stay  of  execution,  and 
the  form  of  the  recognizance. 

In  cases  where  the  defendant  is  entitled  to  a  stay  of  execution, 
he  must,  as  the  foundation  of  the  stay,  enter  into  a  recognizance, 
with  such  good  and  sufficient  surety  as  the  justice  may  approve,  and 
resident  in  the  county ,''  within  ten  days  after  the  rendition  of  the 
judgment.*  If  during  "the  ten  days  the  term  of  office  of  the  justice 
who  rendered  the  judgment  expires,  such  justice  may,  notwith- 
standing, take  bail  for  the  stay."" 

(e)  Stat.  516,  $63.  (i)  Stat.  878,  $5. 

(g)  Compare  $63,  p.  516,  Stat.,  with  $40,  p.  (k)  Id.  516,  $63. 

512;  and  see  5  Ohio  Rep.  442.  270-  (1)  Id.  530,  $114. 

Wri2lil'9  Rep.  314.  (•")  ^^-  ^26,  $108. 
(h)  Stat.  517. 


§2,3,4,]  OF  THE  STAT  OF  EXECUTION.  133 

FORM  OF  RECOGNIZANCE  FOR  STAT  OF  EXECUTION.(l) 

In  the  action  of  A B against  C D ,  I,  K- 


L ,  do  acknowledge  myself  [or  if  there  he  more  than  one  sitretxj^ 

say^  We,  K L and  J ^  S ,  do  acknowledge  our- 
selves] bail  for  C D ,  for  stay  of  execution,  for  the  sum  of 

\here  insert  the  amount  of  the  judgment^  including  cosis^'\  to  be 
levied  of  my  [or  our]  goods  and  chattels,  lands  and  tenements,  if 
default  be  made  in  the  condition  following,  which  is,  that  the  said 

C D shall  pay  the  amount  of  the  judgment  rendered  in 

the  action  aforesaid,  together  with  the  interest  and  costs,  and  the 
costs  that  may  accrue. 

[Signed^  K L , 

J o . 

Taken,  signed  and  acknowledged,  this day  of ,  in  the 

year  18 — . 

G H ,  J.  p. 

The  recognizance,  as  well  as  all  other  forms  prescribed  by  law, 
should  be  written  out  in  full.  If  this  be  not  done,  and  a  party 
should  suffer  a  loss  in  consequence  of  the  negligence  of  the  justice, 
he  will  be  liable  to  such  party  for  all  damages." 

When  the  person  against  whom  a  judgment  has  been  rendered 
refuses  or  neglects  to  enter  into  a  recognizance,  and  fails  to  satisfy 
the  judgment,  the  justice  must,  unless  otherwise  directed  by  the 
plaintiff,  or  his  agent,  immediately  issue  execution,"  without  waiting 
until  the  expiration  of  the  ten  days  to  ascertain  whether  the  party 
can  enter  into  the  recognizance.  If,  however,  within  the  ten  days 
and  after  the  execution  is  issued,  a  recognizance  be  entered  into, 
such  execution  should  be  recalled,  by  an  order  of  the  justice. p  It 
is  not  the  duty  of  the  justice,  in  such  case,  to  seek  the  constable,  nor 
to  serve  the  order;  but  it  will  be  sufficient  if  he  gives  the  defendant 
an  order  recalling  the  execution,  directed  to  the  constable. 


Sec,    IV. IN  WHAT  CASES  AN  EXECUTION  MAT  ISSUE    NOTWITHSTAND- 
ING THE  STAT. 

When  bail  for  the  stay  of  execution  removes  into  any  other  county 
or  State  before  the  stay  expires,  the  justice  must,  on  demand  of  the 
plaintiff,  or  his  agent,  issue  an  execution  against  the  defendant  to 
the  original  judgment  as  in  other  cases.i 

(n)  4  Ohio  Rep.  331.  (p)  Stat.  517,  $68. 

(o)  Stat.  517,  $66.  (q)  Id.  518,  $73. 

(1)  Tills  form  will  be  found  in  Stat.  527.  The  statute  requires  the  recognizance 
of  the  defendant  as  well  us  the  surety,  [Id.  .510,  §6.3,]  but  the  form  of  the  i-ecogni- 
zance  only  requires  the  surety  to  enter  into  it. 


134  OF    THK    STAY    OF    EXECUTION.  [Pr^.  1 ,  C//.  21, 

So,  when  the  hail  for  tho  stay  makes  and  files  an  afTidavit,  that  by 
delaying  the  execution  until  the  full  time  of  the  expiration  of  such 
stay,  he  may  be  compelled  to  pay  the  jud^nncnt,(2)  the  justice  must 
issue  execution  against  tho  iudtj;menl  del)tor,  as  in  other  cases.  The 
bail  are  not  thereby  discharged  from  liability,  but  may  be  proceed- 
ed against  as  if  such  execution  had  not  issued/  But  if  the  judg- 
ment debtor,  within  ten  days  after  a  hvij  is  made  by  such  last  men- 
tioned execution,  enters  into  a  farther  recognizance,  for  the  stay  of 
execution  during  so  much  of  the  first  stay  as  remains  then  unex- 
pired, and  pays  the  costs  of  the  execution  so  issued  against  him,  the 
justice  must  take  such  farther  recognizance,  and  recall  the  execu- 
tion/ 

If  the  justice  improperly,  and  without  any  cause  shown,  issues 
execution  before  the  stay  expires,  it  is  said  the  execution  is  a  nul- 
lity, and  he  is  liable  for  trespass/ 


Sec,    V. PROCEEDINGS    BY    THE    PLAINTIFF  TO  CHARGE  THE  BAIL   FOR 

STAY  OF  EXECUTION,  AND  FORM  OF  THE  SCIRE  FACIAS. 


Upon  the  expiration  of  the  period  for  a  stay,  an  execution  must 
be  issued  in  the  first  instance  (and  before  the  bail  can  be  made  lia- 
ble) against  the  goods  and  chattels  of  the  party  against  whom  the 
judgment  was  rendered,^  If  the  judgment  debtor  dies  before  such 
execution  is  issued,  no  proceedings  can  be  had  on  the  judgment, 
and  consequently  none  against  the  surety.  It  seems,  however, 
where  execution  has  been  issued  upon  a  judgment,  and  before 
its  return,  the  defendant  dies,  and  the  execution  is  in  fact  returned 
unsatisfied,  proceedings  may,  in  such  case,  be  had  against  the  bail, 
though  the  judgment  debtor  left  personal  property  sufficient  to  sat- 
isfy the  judgment,''' 

When  sufficient  goods  and  chatties  of  the  judgment  debtor  can- 
not be  found  to  satisfy  the  execution,  and  that  fact  has  been  return- 
ed by  the  constable,  the  justice  must,  unless  otherwise  directed  by 

(r)  Stat,  518,575.  Cv)  Stat.  517,  $69;  Wright's  Rep.  449. 

(s)  Id.  519,  $76.  (w)  Wright's  Rep.  446. 

(t)  lOSerg.  and  R.  188. 


(2)  The  affidavit  may  be  in  the  form  following-: 

vs.  C    The  State  of  Ohio,  •  County,  ss. 

C D .  3 

K L ,  the  surety  for  the  stay  of  execution  on  the  judg-ment  in 

the  above  cause,  makes  oath  that  he  is  appreliensive,  and  verily  believes  there  is 
danger,  that  by  delaying-  execution  until  the  expiration  of  the  full  time  of  said  stay, 
he  will  be  compelled  to  pay  said  judgment. 

[Signed,]  K L , 

Subscribed,  and  sworn  to,  this day  of ,  A.  I).  18 — . 

G H ,  J.  p. 


§5.]  OF  THE  STAY  OF  EXECUTION.  135 

the  judgment  creditor,  or  his  agent,  proceed  by  writ  of  scire  facias 
against  the  bail.^ 

Where  a  second  and  further  recognizance  has  been  given,  as  may 
sometimes  be  done,(3)  the  person  who  last  became  surety  for  the 
stay  must  be  first  proceeded  against  by  scire  facias,  and  judgment 
thereon;  and  when  it  appears  by  the  return  of  the  constable  upon 
an  execution  issued  against  such  surety,  that  he  has  no  goods  and 
chattels  whereon  to  levy,  proceedings  by  scire  facias  may  then  be 
had  upon  the  first  recognizance.'' 

If  the  surety  reside  in  another  township  of  the  county,  the  justice 
should  proceed  in  the  same  manner  as  if  the  surety  resided  in  his 
proper  township.*^ 


FORM  OF  SCIRE  FACIAS  AGAINST  BAIL  FOR  STAT  OF  EXECUTION. (4) 


The  State  of  Ohio, county,  ss. 

To  any  constable  of  the  township  of ,  greeting: 

Whereas  A B recovered-  judgment  against  C D , 

for  the  sum  of  [/lere  state  the  amount  of  the  deht^  or  damages^  and 

costs^  according  to  the  recovery^  on  the day  of ,  in  the  year 

eighteen  hundred  and ,  as  appears  of  record;  and  whereas 

K L ,  on  the day  of in  the  year ,  became 

surety  on  behalf  of  the  said  C D for  the  payment  of  the 

amount  of  the  judgment  aforesaid,  together  with  interest  and  costs, 

and  the  costs  that  might  accrue,  to  the  said  A B ,  as  appears 

by  the  recognizance  of  the  said  K L ,  which  judgment,  in- 
terest and  costs,  remain  due  and  unpaid:  this  is,  therefore,  to  com- 
mand you  to  summon  the  said  K L to  be  and  appear  be- 
fore me,  at  my  office,  in  the  township  of ,  in  the  said  county, 

at o'clock,  A.  M.,  {or  P.  M.,]  on  the day  of ,  (5)  in 

the  year ,  to  show  cause,  if  any  there  be,  why  judgment 

should  not  be  rendered  against  him  for  the  debt,  [or  damages,]  in- 
terest and  costs  aforesaid,  and  why  execution  should  not  issue 
therefor;  and  of  this  writ  make  legal  service  and  due  return.    Given 

under  my  hand  and  seal  this day  of ,  A.  D. . 

G H ,  J.  p.  [/S^ea/.] 

(a)  Stat.  517,  $69.  (c)  Id.  522,  §90. 

(b)  Id.  519,  $76. 


(3)  Under  what  circumstances  a  furtlior  recog-nizance  may  be  given,  see  the 
preceding' section  of  this  chapter. 

(4)  This  form  will  be  found  in  Stat.  528. 

(5)  The  statute  (Stat.  518,  §70,)  re<[uires  that  the  scire  facias  sh.all  specify  a 
time,  not  exceedinfr  twelve  days  from  the  date  thereof,  and  a  certain  place,  at 
which  the  defendant  shall  appear  and  answer  the  same. 


136  OF  THE  STAY  OF  EXFXUTION.  [Prt.  1,   Ck.  21, 

A  scire  facias  is  in  general  served  and  returned  in  the  same  man- 
ner as  a  suniinons,'^(G)  and  may  be  served  in  any  township  of  the 
county  wherein  the  surety  resides,* 

Upon  the  return  ol"  the  scire  facias  served,  and  on  the  day  men- 
tioned therein  for  the  ajipearance  of  the  defendant,  the  justice  (un- 
less good  cause  be  shown  to  the  contrary)  must  render  judgment 
against  tlie  bail  for  the  amount  of  the  original  judgment,  interest, 
and  costs,  and  the  costs  that  may  have  accrued,  (or  such  part  there- 
of as  may  remain  unpaid,)  and  for  the  costs  in  the  proceeding  by 
scire  facias;  and  unless  otherwise  directed  by  the  plaintiff,  oi-  his 
agent,  must  forthwith  issue  execution  thereon  against  the  goods  and 
chattels  of  such  bail,  as  in  other  cases. ^ 


Sec.  VI. —  FORM  of  docket  entries  and  judgment  in  proceedings 

AGAINST  SURETY  FOR  THE  STAY  OF  EXECUTION. 

After  the  entry  of  the  original  judgment  in  the  cause,  the  subse- 
quent proceedings  should  be  noted  on  the  docket,  thus: 

July  1,  1846.    Execution  fi.  fa.  issued  and  delivered  to  I J , 

constable. 

July  2,  1846.  Recognizance  entered  into:  [Here  enter  the  recog- 
nizance: see  form^p.  133.]  Whereupon,  the  execution  issued  here- 
in was  recalled. 

July  5,  1846.     This  day  came  K L ,  [the  surety  for  the 

stay  of  executionl^  and  made  and  filed  his  affidavit,  in  due  form, 
that  he  is  apprehensive  by  delaying  execution  until  the  expiration 
of  the  above  stay,  he  may  be  compelled  to  pay  the  judgment.  Exe- 
cution was  therefore  issued,  and  delivered  to  I J ,  con- 
stable. 

July  8,,  1846.  This  day,  being  within  ten  days  after  levying  the 
last  named  execution,  further  recognizance  was  entered  into.  [Here 
enter  the  second  recognizance  for  stay  during  so  much  of  the  first  stay 
as  remains  at  this  time  unexpired^  and  then  proceed {\  Whereupon, 

the  defendant  paid  the  costs  of  said  execution,  being cents, 

and  the  same  was  recalled. 

August  1,  1846.  Stay  expired.  Execution  issu:d  against  the 
defendant,  and  delivered  to  I J ,  constable. 

August  10,  1846.  Execution  returned,  indorsed,  [here  enter  the 
return  of  the  constable^ 

August  11,  1846.     Issued  scire  facias  against  M N ,  [the 

surety  on  the  last  recognizance^  and  delivered  to  I J ,  con- 
stable, for  appearance  on  the  \lth  August^  1846,  at  2  o''clock^  P.  M. 

(d)  Stat.  518,  $70.  (e)  Id.  518,  $71. 

(e)  Id.  522,  $90 

(6)  As  to  the  mode  of  serving-  and  returning-  a  summons,  see  pages  32,  33. 


§B,  7,  8.]  OF  THE  STAY  OF  EXECUTION,  137 

August  13,  1846.     Scire  facias  returned,  "Personally  served,  on 

the day  of ,  1 8 — ,  by  reading  this  writ  to  the  defendant. 

'■'■Fees, .  I J ,  constable." 

August  17,  1846,  2  O'clock^  P.  M.  The  parties  appeared,  trial  had, 
and  no  good  cause  shown  to  the  contrary,  it  is  considered  by  me, 

that  said  A ^  B ,  [tlie  plaiuiijf  to  the  original  action^  recover 

of  said  M N [the  surety]  the  sum  of ,  \_here  insert  the 

sum  total  of  the  original  judgment^  interest^  and  costs^  and  the  costs 
that  have  accrued  on  the  judgment^  or  so  much  as  remains  unpaid^ 

and  then  proceed^  and  his  costs  herein  taxed  at dollars,  

cents. 

August  18,  1846.     Issued  execution  against  M N ,  [the 

judgment  surety^l  and  delivered  to  I J ,  constable. 

September  2,  1846.  Execution  returned,  indorsed,  [liere  copy  the 
return  of  the  constable.] 

September  3,  1846.     Issued  scire  facias  against  K L ,  [the 

surety  upon  the  first  recognizance^  and  delivered  to  I J ,  con- 
stable, for  appearance,  September  11,  1846,  at  —  o'' clocks  F.  M. 

\Hei-e  enter  the  return.,  proceedings.,  and  judgment.,  in  like  manner 
as  upon  the  first  scire  facias.,  the  form  of  which  i^  given  above.] 


Sec.  VII. — OF  proceedings  by  the  plaintiff  on  the  original  judg- 
ment, AFTER  JUDGMENT  AND  EXECUTION  AGAINST  THE 
BAIL  FOR  STAY. 

When  the  original  judgment  remains  vmsatisfied,  after  execution 
has  been  issued  and  returned  against  the  surety  for  stay  of  execu- 
tion, and  this  fact  appears  by  the  return  of  the  constable,  the  plain- 
tiff, or  his  agent,  may  then  demand  and  have  execution  on  the  ori- 
ginal judgment.*^ 

Sec.  VIII. OF  PROCEEDINGS  BY  THE  BAIL  ON  THE  ORIGINAL  JUDG- 
MENT. 

After  judgment  is  rendered  against  the  surety  for  stay,  the  origi- 
nal judgment  remains  good  for  the  use  of  the  surety,  and  he  may 
at  any  time  thereafter,  although  he  may  have  paid  nothing,  sue  out 
execution  on  such  judgment.*^ 

When  an  execution  is  issued  for  the  benefit  of  the  bail,  that  fact 
should  be  indorsed  by  the  justice  upon  the  execution.® 

If  the  defendant  has  removed,  or  resides  out  of  the  county  where 
the  judgment  was  originally  given,  and  the  bail  have  paid  the  whole 
or  any  part  of  the  judgment,  they  may  take  a  transcript,  and  sue 
the  defendant  by  scire  facias.,  before  a  justice  in  the  township  to 
which  the  defendant  has  removed.^ 

(c)  Stai.  518,  $72.     Tlic  slatutc  only  mentions  (d)  Id.  519,  $77. 

a  ca.  sa.,  but  constructively  it  pcriinp:s  allows  a  fi.  (e)  Id.  ib. 

fa.  to  be  issued.  (^)  Id.  879,  $6  and  7. 
18 


CMAPTEK  XXII. 


OF  THE  ISSUING  AND  FORMS  OF  EXECUTIONS. 


SECTION  r.  WHEN  AND  WilAT  KIND  OF  KXKCUTION  MAY  BE  FIRST  ISSUED. 

H.         IN   WHAT    CASES    AN    EXECUTION    MAY   ISSUE    OUT   OF    THE 
TOWNSHIP. 

III.  WHEN  A  VENDITIONI  EXPONAS  MUST  HE  ISSUED. 

IV.  FORM  OF  A  FIERI  FACIAS. 

V.  FORM    OF  AN    EXECUTION  AGAINST    THE    GOODS,    CHATTELS 

AND  BODY  OF  THE  DEFENDANT. 

VI.  FORM    OF  AN    EXECUTION  AGAINST    THE    GOODS    AND   CHAT- 

TELS   OF    CO-DEFENDANTS,    WHERE    SOME   OF    THEM  ARE 
SURETIES. 

VII.  FORM  OF  AN    EXECUTION  AGAINST    EXECUTORS  AND  ADMIN- 

ISTRATORS. 

VIII.  FORM  OF  A  VENDITIONI  EXPONAS. 


Sec    I. WHEN  AND  WHAT    KIND    OF   EXECUTION    MAY  BE    FIRST  ISSUED, 

An  execution  cannot  be  issued  upon  a  judgment  against  a  town- 
ship.(l)  In  other  cases  in  which  a  stay  of  execution  cannot  be  al- 
lowed, or  is  not  immediately  entered,  or  an  appeal  taken,  or  the 
judgment  and  costs  paid,  it  is  the  duty  of  the  justice,  unless  other- 
wise directed  by  the  plaintiff  or  his  agent,  to  issue  execution  against 
the  goods  and  chattels  of  the  defendant.  This  writ  is  called  a  Fieri 
Facias.  If  the  justice,  without  authority  from  the  plaintiff,  delay 
to  issue  the  execution,  by  means  of  which  the  plaintiff  loses  his 
debt,  the  justice  will  be  liable  for  such  loss. 

(1)  III  such  cases,  an  abstract  of  the  judgrnent  and  costs  must  be  made  out  by 
the  justice,  and  delivered  to  tlie  clerk  of  the  townsliip.  >Sfuf.  95fi,  §33.  Tiie 
township  clerk  then  notifies  the  trustees  that  a  judgement  is  obtained,  and  they 
must  draw  an  order  on  the  townsliip  treasurer,  in  favor  of  the  justice  or  clerk, 
for  the  amount  of  the  judgment  and  costs.  Id.  lb.  If  the  trustees  refuse  to  g-ive 
the  order,  or  if  the  order  be  issued  and  the  treasurer  sliould  refuse  to  pay  it  wlien 
presented,  and  while  there  are  funds  in  his  possession,  the  court  will  interfere  and 
compel  payment,  or  an  assessment  of  a  tax  to  raise  the  funds.     Wright's  Rep.  292. 


[Pr/.  1,  C7/.  2:2,  §1.]      of  issuing  executions.  139 

When  the  judgment  is  agamst  two  or  more  co-defendants,  and  a 
certificate  has  been  entered  on  the  docket,  that  one  or  more  of  the 
defendants  were  sureties,  the  execution  should  be  issued  according 
to  the  form  hereafter  given.(2)  The  property  of  the  principal 
debtor,  within  the  jurisdiction  of  the  justice  must,  in  such  case,  be 
sold  and  exhausted,  before  a  levy  can  be  made  on  the  property  of 
the  surety.* 

The  justice  should,  in  general,  after  the  expiration  of  a  stay  of 
execution,  issue  an  execution ;  though  he  is  not  bound  to  do  so,  un- 
less the  plaintift'  or  his  agent  order  it.  Such  order  to  a  justice  when 
not  in  his  office,  though  in  the  township,  unless  in  writing,  would 
not,  it  seems,  subject  him  to  suit  for  neglect.'' 

As  to  an  execution  for  the  body.  This  writ  is  sometimes  called 
a  ca.  sa.  w^hich  is  an  abbreviation  of  the  words  capias  ad  satisfaci- 
endum. It  cannot  be  issued  against  an  executor  or  administrator, 
or  corporation;  nor  against  such  persons  as  are  privileged  from 
arrest. 

If  suit  has  been  commenced  by  a  capias  ad  respodendum.^  issued 
upon  affidavit  filed  as  hereinbefore  directed,(3)  an  execution  for  the 
body  may  issue  on  the  judgment,  without  any  further  affidavit. 

Where  judgment  is  obtained  for  a  fine  or  penalty,  or  against  an 
attorney  at  law,  justice,  constable,  or  other  public  officer,  for  moneys 
collected,  or  for  any  misconduct  or  neglect  in  office  or  professional 
employment,  an  execution  for  the  body  may  issue,  at  the  request  of 
the  plaintiff",  his  agent  or  attorney,  without  affidavit.*^ 

Formerly  an  execution  for  the  body  could  be  issued,  at  the  re- 
quest of  the  plaintiff",  but  now,  no  execution  for  the  body  can  issue, 
except  in  the  cases  just  mentioned,  unless  the  plaintiff",  his  agent  or 
attorney,  shall  satisfy  the  justice  by  affidavit,  (and  other  testimony, 
if  required  by  the  justice,)  of  one  of  the  following  particulars:^ 

1st,  That  the  defendant  has  removed,  or  is  about  to  remove  any 
of  his  property  out  of  the  jurisdiction  of  the  justice,  with  intent  to 
prevent  the  collection  of  the  money  due  on  the  judgment;  or, 

2d,  That  the  defendant  has  property,  rights  in  action,  (that  is, 
notes,  accounts,  bonds,  or  other  claims,)  evidences  of  debt,  or  some 
interest  or  stock  in  some  corporation  or  company,  which  he  fraud- 
ulently conceals,  or  unjustly  refuses  to  apply  to  the  payment  of  the 
judgment;  or, 

3d,  That  the  defendant  has  assigned  or  disposed  of,  or  is  about  to 
assign  or  dispose  of  his  property,  or  rights  in  action,  with  intent  to 
defraud  his  creditors,  or  give  an  unfair  preference  to  some  of 
them;  or, 

4th,  That  he  has  converted,  or  is  about  to  convert  his  property 
into  money,  with  intent  to  prevent  its  being  taken  on  execution;  or, 

(a)  Stat.  511,531.  (c)  Stat.  647, 52 ;  Id.  517,  $66. 

(b)  Wright's  Rep.  748.  (d)  Id.  647,  648,  649. 

(2)  Sec  Section  0,  of  this  Chapter. 

(3)  See  Part  1,  Cliapter  ^,  Section  2. 


140  OF  ISSUING  EXKcUTioNs.  IPrt.  1,  Ch. '2'-2^ 

5tli,  That  he  IVaudulcnily  contracted  the  debt,  or  incurred  the 
olilijration  on  wliich  the  judgment  was  rendered;  or, 

6th,  That  he  is  al)out  to  remove  his  l)ody  out  of  the  township;  or, 

7th,  Tiiat  he  lias  converted  his  property  into  money  for  the  pur- 
pose of  phicing  it  beyond  the  reach  of  his  creditors;  or, 

8th,  That  he  is  not  a  citizen  or  resident  of  this  State. 


The  affidavit  for  an  execution  for  the  body,  may  be  in  the  form 
followinii;: 


A B- 

vs. 


*  (    Judgment  for  Plaintif  on  docket  of  G —  H — , 
^ ^^-j-j ^        J.  p., township. 

The  State  of  Ohio, county, Township,  ss. 

The  said  A Ji ,  [or  say^  E F ,  agent  for  said 

A B ;  or  say^  E F ,  the  authorized  agent  of  said 

A B ,  being  the  assignee  of  said  judgment,  as  the  case  may 

he^  makes  solenni  oath  that  the  above  named  C D ,  [liere 

state  one  of  the  causes  above  mentioned  for  the  iss7/wg  a  ca.  sa.  with 
the  jyarticulars  and  circumstances^  ^-c.^  if  any^  and  further  affiant 
saith  not.  [Signedl^. 

A B . 


Sworn  to  and  subscribed  before  me,  this day  of ,  1 8 — . 

G — H ,  J.  p., 

towaiship. 


Before  the  statute  requiring  an  affidavit  to  be  filed  as  above  men- 
tioned, the  usual  command  of  an  execution  against  the  body,  was,  to 
levy  on  goods  and  chatties,  and  for  want  thereof,  to  take  the  body. 
This  form  is  still  proper  when  execution  for  the  body  may  be  issued 
without  an  affidavit.  Execution,  however,  may  issue  against  the 
body  alone,  when  the  affidavit  is  filed  and  a  capias  ad  respondendum 
or  execution  for  the  body  is  allowed  under  the  statute,  as  above 
mentioned;  or  against  the  property  and  body,  whichever  the  appli- 
cant desires.(4) 

Sec.    II. IN     WHAT     CASES     AN     EXECUTION     MAY    ISSUE    OUT    OF    THE 

TOWNSHIP, 


When  the  defendant  resides  out  of  the  township,  but  in  the  same 
county,  in  which  the  judgment  was  rendered,  execution  may  issue 
to  any  constable  of  the  township  in  which  the  judgment  was  ob- 
tained, or  of  the  township  wherein  the  debtor  resides;  and  where 


(4)  For  the  form  of  the  two  khicls  of  executions  for   the  body,  see  Sec.  5,  of 
this  chapter. 


§1,  2,  3,  4.]  FORMS  OF  EXECUTIONS.  141 

there  is  a  return  by  the  constable,  upon  an  execution,  that  sufficient 
goods  and  chattels  cannot  be  found  in  the  township  where  the  jus- 
tice resides  who  issued  the  execution,  and  it  is  suggested  to  the 
justice  that  the  judgment  debtor  has  goods  and  chattels  within  any 
other  township  of  the  same  county,  the  justice  may  issue  execution, 
either  to  a  constable  of  his  own  township,  or  to  one  within  the  town- 
ship in  which  the  goods  are  suggested  to  be;^  and  the  officer  is 
bound,  as  in  other  cases,  to  execute  the  process. 


Sec.    III. WHEN  A  VENDITIONI  EXPONAS  MUST   BE  ISSUED. 


if  property  has  been  levied  upon,  and  it  appear  from  the  return 
of  the  constable  that  the  same  remains  unsold  for  want  of  bidders, 
or  from  other  just  cause,  the  justice,  unless  otherwise  directed  by 
the  party  for  whom  the  execution  issued,  or  his  agent,  must  imme- 
diately issue  a  venditioni  exponas,  thereby  commanding  any  consta- 
ble to  whom  the  same  is  directed  or  delivered,  to  expose  the  prop- 
erty for  sale.'' 

The  justice,  at  the  request  of  the  person  entitled  to  the  benefit 
of  this  execution,  his  agent  or  attorney,  may  add  thereto  a  com- 
mand to  the  officer,  that  if  the  property  remaining  in  his  hands 
not  sold,  shall,  in  his  opinion,  be  insufficient  to  satisfy  the  judg- 
ment, he  shall  levy  upon  sufficient  goods  and  chattels  to  satisfy  the 
same.' 

This  writ  should  be  delivered  to  the  constable  who  has  the  pro- 
perty in  custody. 


Sec.    IV. FORM  OF  EXECUTION  AGAINST  THE  GOODS  AND   CHATTELS  OF 

THE  DEFENDANT.(5) 

State  of  Ohio, county,  ss. 

To  any  constable  of  the  township  of ,  greeting : 

Whereas,  A B obtained  a  judgment  against  C 


D ,  before  me,  G H ,  a  justice  of  the  peace  for 

the  township  aforesaid,  for  the  sum  of  [here  state  the  amount  recov- 
ered., of  debt  or  damages.,  and  the  costs  only  of  the  joay-ty  recovering 
judgjnent.^  on  the  —  day  of ,  in  the  year  1 8 — .  t 

You  are  therefore  commanded,  that  of  the  goods  and  chattels  of 

the  said  C D ,  you  cause  to  be  made  the  debt  [or  damages] 

and  costs  aforesaid,  and  costs  that  may  accrue:  *  and  of  this  writ 
make  legal  service  and  due  return. 

Given  under  mv  hand  and  seal,  this day  of ,  A.  D. 

I  8—. 

G II ,  J.  p.  (,SV^//.) 

(g)  Stat.  522,  $91,  92.  (h)  Id.  520,  $82.  (i)  Id.  486,  $41. 


(•"i)  This  form  will  be  fouiul  in  Slal.  52H. 


142  FORMS  OF  EXECUTIONS.  [Pfl.   1,   Cfl.  22, 

The  costs  made  by  the  party  against  whijni  tlie  judgment  is  ren- 
dered, arc  not  inchulcd  in  the  execution,  but  must  be  indorsed  upon 
it,  and  they  are  collected  by  the  ollicer  to  whom  the  writ  is  direct- 
ed, in  the  same  manner  and  at  the  same  time  that  the  judgment 
mentioned  in  the  writ  is  collected.'' 


Sec,  V. — FORM  of  execution  against  the  goods,  chattels  and 

BODY  OF  the  defendant.' 

Make  out  the  execution  in  the  same  form  as  the  preceding  one^  to 
the  *,  and  then  from  tJiat  jioint  jrroceed  as  folloivs:  But  for  want  of 
goods  and  chattels  whereon  to  levy,  then  take  the  body  of  the  said 

C D to  the  jail  of  the  county,  there  to  be  safely  kept  in 

the  custody  of  the  jailor,  until  the  said  debt  [or  damages]  and  costs 
that  have  accrued  and  that  may  accrue,  shall  be  paid,  or  he  be  other- 
wise legally  discharged:  and  of  this  writ  make  legal  service  and  due 
return. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D. 

18—. 

G II ,  J.  i>.  (Seal) 

EXECUTION  AGAINST  THE  BODY  ALONE,  (commoiily  Called  a  Ca.  Sa.) 

Make  out  the  execution  in  the  same  form  as  in  the  j^f'eceding  sec- 
tion^ (Sec.  4,)  to  the  t,  and  from  that  point  proceed  as  follows: 

And  whereas  said  A B hath,  by  affidavit,  satisfied  me 

that  [liere  state  the  cause  of  issuing  the  ca.  sa.  as  set  forth  in  the 
(iffidavit  071  Jile.'\ 

You  are  therefore  commanded  to  take  the  body  of  the  said  C 

D to  the  jail  of  the  county,  there  to  be  safely  kept  in  the  cus- 
tody of  the  jailor  until  the  said  debt  [or  damages,]  and  costs  that 
have  accrued  and  that  may  accrue,  shall  be  paid,  or  he  be  other- 
wise legally  discharged:  and  of  this  writ  make  legal  service  and  due 
return. 

Given  under  mv  hand  and  seal  this dav  of ,  A.  D. 

18—. 

G H ,  J.  p.  (Seal.) 


Sec.  VI. — form  of  execution  against  co-defendants,  avhere  some 
of  them  are  sureties.  (6) 

State  of  Ohio, County,  ss. 

To  any  constable  of  the  township  of ,  greeting: 

Whereas,  A B obtained  a  judgment  against  C D , 

principal  debtor,  and  E —  F — ,  [here  naining  ail  the  sureties  against 

(k)  Stat.  405,  $50.  (I)  Id.  528. 

(6)  As  to  when  tliis  writ  is  to  be  issued,  sec  page  105. 


§5,  6,  7,  8.]  FORMS    OF    EXECUTIONS.  143 

whom  judgment  icas  rendered^'}  his  surety,  before  me,  G H , 

a  justice  of  the  peace  of  the  township  aforesaid,  for  the  sum  of 
[here  state  the  amount  recovered^  of  debt  and  damages^  and  the  costs 

only  of  the  party  recovering  judgment^  on  the day  of , 

in  the  year , 

You  are  therefore  commanded,  that  of  the  goods  and  chattels  of 
[Jiere  insert  the  name  of  the  principal  debtor^']  you  cause  to  be  made 
the  debt  \or  damages]  and  costs  aforesaid,  and  costs  that  may  ac- 
crue, and  for  want  of  such  goods  and  chattels  of  said  C D , 

whereof  to  make  the  same,  then,  that  you  make  the  same  of  the 
goods  and  chattels  of  [liere  insert  the  names  of  all  the  co-defendants 
who  are  sureties  for  the  principal  debtor:']  And  of  this  writ  make 
legal  service  and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  1 8 — . 

G H ,  J.  p.  (Seal) 

Indorse  on  the  writ  the  costs  made  by  the  party  against  whom  the 
judgment  is  rendered." 


Sec.  YII. — form  of  an  execution  against  executors  or  adminis- 
trators. 

State  of  Ohio, county,  ss. 

To  any  constable  of  the  township  of ,  greeting: 

Whereas,  A B obtained  judgment  against  C D- 


as  administrator  [or  as  executor,  as  the  case  may  ^e,]  of  the  estate 

of  C —  F ,  deceased,  before  me,  G H ,  a  justice  of 

the  peace  for  the  township  aforesaid,  for  the  sum  of dollars, 

debt,  [and dollars,  and cents,  costs,]  on  the day  of 

,  in  the  year  eighteen  hundred  nnd . 

You  are  therefore  commanded,  that  of  the  goods  and  chattels 

which  were  of  the  said  C F at  the  time  of  his  death,  and  in 

the  hands  of  the  said  C D ,  yet  to  be  administered,  you 

cause  to  be  made  the  debt  [and  costs]  aforesaid,  and  the  costs  that 
may  accrue:  And  of  this  writ  make  legal  service  and  due  return. 

Given  under  my  hand  and  seal  this day  of ,  A.  D.  1 8 — . 

G H ,  J.  p.  {Seal.) 

Indorse  on  the  writ  the  costs  made  or  caused  by  the  executor  or 
administrator."" 


Sec.  VIII.  —  FORM  OF  a  venditioni  exponas. 

State  of  Ohio, county,  ss. 

To  \Jiere  insert  the  naine  of  the  constable  v^ho  has  the  propertifin  his 
jjossession.,  or  if  he  be  out  of  office  or  dead.^  then  the  urit  should  be 
directed.,  To  any]  constable  of  the  township  oi' ,  greeting: 

(m)  Slat.  405,  $50. 


144  FORMS    OF    EXECUTIONS.  [i"*//.  1 ,  C//.  22,  §8,J 

You  are  hereby  commanded,  that  those  goods  and  chattels  of 

C D ,  to  wit;  \Jiere  insert  a  descriplion  of  the  goods  fi'om  the 

inventor]!]  which  you  [(>/•  if  the  constabk  vho  seized  the  property  be 

dead  or  out  of  office^  suy^  which  one  I J ,  late  constable  of 

said  township]  levied  upon,  and  which  remain  unsold,  you  expose 

to  sale,  to  satisfy  as  well  a  certain  judgment  obtained  by  A 

B against  C D ,  before  me,  G H ,  a  justice 

of  the  peace  for  the  township  aforesaid,  for  the  sum  of  [//ere  state  the 
amount  recovered  of  debt  and  damages^  and  the  costs  onhj  xchich  ivere 

made  or  caused  bij  the  party  recovering  j udgment!]  on  the day  of 

,  in  the  year  1 8 — ,  as  [the  costs  that  have  accrued,  being  the 

sum  of ,  and]  the  costs  tliat  may  hereafter  accrue:  [Here  add^ 

at  the  request  of  the  person  entitled  to  the  benefit  of  the  tvrit^  his  agent 
or  attorney^  the  foil oiving  further  command:  KxiA  if  the  said  property 
is  in  your  opinion  insutficient  to  satisfy  said  judgment,  then  levy 

upon  and  sell  sufficient  other  goods  and  chattels  of  the  said  C 

D to  make  the  balance:"]  And  of  this  writ  make  legal  service 

and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G H ,  J.  p.  {Seal) 

Indorse  on  the  writ  the  amount  of  the  costs  made  or  caused  by 
the  party  against  whom  the  judgment  is  recovered." 

(n)  Stat.  486,  $42.  (o)  Stat.  405,  $50. 


CHAPTER  XXIII. 
OF  PROCEEDINGS  UNDER  A  FIERI  FACIAS;  AND  HEREIN, 


SEC.  I,       AVHAT  PROPERTY  IS  EXEMPT  FROM  EXECUTION, 

II.  WHAT  DESCRIPTION  OF  PROPERTY  CAN  BE  TAKEN  ON  EXECUTION. 

III.  WHEN,  AND  WHAT  FORCE  MAY  BE  USED,  TO   OBTAIN    PROPERTY. 

IV.  WHAT  IS  A  GOOD  LEVY,  AND  WHAT  IS  NOT, 

V.  OF  THE  EFFECT  OF  A  LEVY. 

VL  WHEN  PROPERTY  LEVIED  UPON  MAY  BE  LEFT  IN  THE  POSSESSION 
OF  THE  DEFENDANT,  BY  THE  CONSTABLE  OR  BY  THE  PLAINTIFF, 
AVITH  THF-  FORM  OF  A  BOND  FOR  RE-DELIVERY. 

VII.  EFFECT  OF  DEATH  OF  EITHER  PARTY  TO  A  JUDGMENT,  AFTER  LEVY. 

VIII.  OF  THE  ADVERTISEMENT  AND  SALE. 

IX.  OF  THE  TITLE  ACQ,UIRED  BY  A  PURCHASER  ON  EXECUTION. 

X.  OF  THE  RETURN  OF  EXECUTIONS,  AND  THE  FORMS  THEREOF. 

XI.  SUGGESTION  OF  LANDS. 

XII.  OF  THE  RIGHTS  OF  THE  PLAINTIFF,  AND  THE  DUTIES  OF  THE  CON- 

STABLE, WHEN  THERE  ARE  TWO  OR  MORE    EXECUTIONS  AGAINST 
THE  SAME  DEBTOR. 

XIII.  WHAT  MUST  BE  DONE  WITH  MONEY  COLLECTED  ON  EXECUTION,  &C. 


Sec.   I. WHAT  PROPERTY  IS  EXEMPT  FROM  EXECUTION. 

By  act  of  March  9,  1 840,*  it  is  provided,  that  each  person  who 
has  a  family,  shall  hold  the  following  property,  exempt  from  execu- 
tion or  sale  for  any  debt,  damages,  fine  or  amercement,  to  wit: 

First:  The  wearing  apparel  of  such  family,  the  beds,  bedsteads 
and  bedding  necessary  for  the  use  of  such  family;  one  stove  and 
pipe,  used  either  for  cooking  or  for  warming  the  dwelling  house;  an 
amount  of  fuel  sufficient  for  the  period  of  sixty  days,  actually  pro- 
vided and  designed  for  the  use  of  such  family. 

Secondly:  One  cow,  or,  if  the  debtor  own  no  cow,  household 
furniture,  to  be  selected  by  the  debtor,  not  exceeding  fifteen  dollars 
in  value;  two  swine,  or  the  pork  therefrom,  or,  if  the  debtor  own 
no  swine,  household  or  kitchen  furniture,  to  be  selected  by  the 
debtor,  not  exceeding  six  dollars  in  value;  six  shoej),  the  wool  shorn 
from  them,  and  the  cloth  or  other  articles  manufactured  therefrom, 
or,  in  lieu  of  such  sheep,  household  or  kitchen  furniture,  to  be  se- 
lected by  the  debtor,  not  exceeding  ten  dollars  in  value;  and  suf- 
ficient food  for  such  animals,  when  owned  by  the  debtor,  for  the 
period  of  sixty  days. 

Thirdly:  The  bibles,  hymn  books,  psalm  books,  testaments  and 
school  books  used  in  the  family,  and  all  family  pictures. 

Fourthly:  Any  amount  of  provisions  actually  prepared  and  de- 

(a)  Stnt.  487. 

19 


14G  EXECUTION — LEVY.  [7-*rM,  C/i.  23, 

signed  for  the  sustenance  of  such  family,  not  exceeding  forty  dol- 
lars in  value,  to  be  selected  by  the  debtor;  and  such  other  articles 
of  household  and  kitchen  furniture,  or  either,  necessary  for  the 
debtor  and  his  laniily,  and  to  be  selected  by  the  debtor,  not  exceed- 
ing thirty  dollars  in  value. 

"Fifthly:  The  tools  and  implements  of  the  debtor,  necessary  for 
carrying  on  his  trade  or  liusiness,  whether  mechanical  or  agricul- 
tural, to  be  selected  by  him,  not  exceeding  fifty  dollars  in  value. 

It  is  further  provided,  that  the  amount  of  beds,  bedsteads  and 
bedding,  necessary  for  the  use  of  such  family,  the  amount  of  fuel 
sutiicient  for  the  period  of  sixty  days,  actually  provided  and  de- 
signed lor  the  use  of  such  family;  the  amount  of  food  for  the  use  of 
the  animals  exempted  from  execution,  for  the  period  of  sixty  days, 
shall  be  determined  by  two  disinterested  householders  of  the  coun- 
ty, to  be  selected  by  the  officer  holding  the  execution.  And  the 
value  of  the  provisions,  household  and  kitchen  furniture,  and  the 
tools  and  implements  of  the  debtor,  necessary  for  carrying  on  his 
trade  or  business,  exempted  from  execution,  shall  be  estimated  and 
appraised  by  said  householders. 

On  an  execution  against  an  executor  or  administrator,  as  such, 
his  own  pro[)erty  cannot  be  taken.  The  officer  can  only  seize  the 
property  of  the  decedent,  whom  the  administrator  or  executor  rep- 
resents. tSo,  on  the  other  hand,  upon  an  execution  against  a  person 
in  his  individual  capacity,  the  property  which  he  may  have  in  his 
possession  as  executor  or  administrator,  cannot  be  taken.  The 
seal,  registers  and  official  documents  of  notaries  public  are  exempt 
from  execution.'' 

The  goods  and  chattels  of  a  public  ambassador,  or  minister  of  a 
foreign  State,  and  of  his  domestic  servants,  are  not  liable  to  be  taken 
on  execution.*^ 

Where  execution  is  issued  against  the  wife  on  a  judgment  obtain- 
ed against  her  before  coverture,  the  goods  that  she  had  before  mar- 
riage cannot  be  taken,  for  they  vest  in  the  husband  by  the  marriage.*^ 

A  constable  by  taking  property  that  is  exempt  from  execution, 
will  render  himself  liable  to  an  action  of  trespass,  w'hich  may  be 
prosecuted  in  the  court  of  common  pleas. 

Sec.  II. WHAT  DESCRIPTION  OF  PROPERTY  CAN  BE    TAKEN  ON  AN  EXE- 
CUTION, 

The  officer  is  authorized  to  seize  and  sell,  as  goods  and  chattels, 
all  personal  property  of  a  tangible  nature,  except  what  is  exempt 
by  law.  Growing  corn,  and  other  crops  raised  annually  by  labor, 
are  chattels,  and  as  such  may  be  levied  on  before  or  after  they  are 
gathered.^ 

An  officer  has  no  right  to  cut  down  or  gather  a  crop  before  it  is 
ripe  ;S  but  when  a  levy  is  made  while  the  crop  is  unripe,  he  may 

(b)  Stat.  601,  $3.  (e)  17  Johns.  Rep.  12ft;  2  Id.  41S;  9  Id.  108. 

(c)  See  pa?e  29;  and  also  Laws  U.  S.  Vol.  2,  Stat.  520,  $84.     9  Cow.  Rep.  39. 

p.  97,  98.  (c)  7  Masg.  Rep.  34. 

(d)  3  M,  and  S.  558. 


§1,  2.]  EXECUTION LEVY.  147 

then  sell  it,  or  wait  until  it  shall  be  ripe.''  The  purchaser  will  have 
a  right  to  take  care  of,  and  to  gather  it.' 

Apples  upon  the  trees,  and  all  such  things  as  grow  annually  with- 
out labor,  are  a  part  of  the  freehold,  and  cannot  be  taken  by  an 
execution  unless  severed  from  the  freehold. 

The  interest  or  estate  of  a  tenant  in  lands  held  by  an  unexpired 
lease,  is  also  a  chattel  that  may  be  sold.''  If  a  lease  be  renewable 
forever,  it  cannot  be  levied  upon  or  sold  by  a  constable.'  If  there 
are  fixtures  upon  land  occupied  by  a  tenant,  which  he  has  a  right 
to  remove,  at  or  before  the  expiration  of  the  lease,  the  officer  may 
in  general  levy  upon  them  as  chattels  of  the  tenant,  to  satisfy  an 
execution  against  him.  It  is,  however,  a  general  rule,  that  where 
a  tenant  makes  a  permanent  improvement  upon  rented  land,  such 
as  a  dwelling  house,  or  out  buildings,  he  cannot  remove  them,  either 
before,  or  at  the  expiration  of  the  lease,  unless  allowed  to  do  so  by 
the  terms  of  the  lease.*"  There  are  exceptions  to  this  rule.  If  a 
building,  shop,  or  machine,  be  put  up  by  a  tenant,  for  the  purpose 
of  carrying  on  his  trade,  it  is  in  general  considered  as  his  chattel 
property,  which  he  may  remove;  as,  where  a  tenant  erects  a  house 
to  carry  on  the  business  therein  of  making  varnish;"  or  vats  are 
erected  by  a  soap  boiler.^ 

It  has  been  decided,  that  a  cider  mill  and  press  erected  by  a  ten- 
ant, at  his  own  expense  and  for  his  own  use,  may  be  removed  by 
him  at  or  before  the  expiration  of  the  lease,  and  consequently  may 
be  levied  upon  as  his  chattel. (2) 

If  the  agreement  between  the  landlord  and  tenant  be,  that  the 
tenant  may  remove  his  improvements,  they  are  the  chattel  property 
of  the  tenant,  and  may,  together  with  the  leasehold  estate,  be  levied 
upon  and  sold.  In  general,  however,  fences,  buildings,  cider  mills, 
vats,  &c.,  and  other  fixtures,  are  a  part  of  the  land,  and  cannot  be 
sold  as  chatties  upon  an  execution  against  the  owner  of  the  land.P 

Money  of  the  judgment  debtor,  in  his  house  or  possession,  may 
be  levied  upon,  and  must  be  credited  (without  sale)  on  the  execution.'^ 
So,  bank  bills  may  be  levied  upon  as  money, •"  and  applied  without 
sale  to  the  discharge  of  the  execution.  Where  an  officer  has  an 
execution  against  a  judgment  debtor,  and  has  at  the  same  time 
money  of  the  judgment  debtor  in  his  hands,  collected  on  an  execu- 
tion, it  seems  that  the  officer  cannot  levy  upon  such  money  until  it 
is  in  the  hands  of  the  debtor.' 

(h)  -2  Johns.  Rep.  418.  (o)  1  Palk.  3GR;  6  Cow.  665;  7  Cow.  319. 

(i)  7  Majis.  Rep.  1i4.  (p)  6  Cow.  Rep.  665;  .'5  East's  Rop.  38. 
(k)  3  Oliio  Rep.  449.  465;  7  Enz.  C.  L.  Rep.     (q)  ]  Cranrli  117;   1  I'ct.  Cond.  Rep.  261. 

83.     See  19  Johns.  Rep.  73.  (r)  12  Johns.  Rep.  220.  395.     The  case  of  Good- 

(I)  Stat.  289.  enow  vs.    Duffield    (WrigUrs   Rep.   455) 

(m)  6  Eng.  C.  L.  Rep.  19.  docs  not  conflict  willi  tlie  rule  in  tlie  icit. 

(n)  2  East's  Rep.  38.  (s)  1  Ohio  Rep.  275. 


(2)  20  Johns.  Rep.  29.  It  would  .seem  from  the  decision  in  tliis  cn.se,  that  tlie 
property  which  the  tenant  had  a  right  to  remove  before  the  expiration  of  the 
lease,  lie  may  remove  afterwards,  and  that  lie  would  in  such  case  l)c  only  liable  to 
nominal  damag'es  for  entering  upon  the  land  to  take  the  properly  away. 


148  EXECUTION LEVY.  [Pr/.  1 ,  67i.  23, 

Promissory  notes,  bonds  and  other  contracts,  private  papers,  ac- 
count books,  and  also  bank  shares,  and  shares  in  a  public  Hbrary,  or 
other  corporation,  are  not,  in  general,  liable  to  be  seized  and  sold 
upon  execution.' 

Where  property  is  honestly  assigned,  mortgaged  or  pledged  by  a 
judgment  debtor,  before  levy,  as  security  for  a  debt,  it  cannot  be 
levied  upon  and  sold  by  execution  against  such  judgment  debtor;' 
at  least,  not  until  the  debt  for  which  the  assignment,  pledge,  or 
mortgage  was  given,  has  been  tendered  oj-  paid.''  But  if  the  de- 
fendant has  hired  the  use  of  goods  or  chattels  for  a  certain  period, 
the  ofRcer  may  seize  and  sell  the  goods,  and  the  purcliascr  will  ac- 
quire the  right  to  use  them  during  the  term  they  were  liired  by  the 
defendant.* 


Sec.    III. WHEN,  AND  WHAT  FORCE  MAY  BE  USED  TO  OBTAIN  PROPER- 
TY ON  EXECUTION. 


If  the  outer  door  of  the  dwelling  house  of  the  defendant  be  shut, 
the  oflicer  has  no  right  to  break  it  open  in  order  to  seize  his  goods 
on  execution;''  nor,  if  refused  admittance,  can  he  open  the  door, 
though  it  be  only  latched.  If  he  knocks  at  the  door,  and  is  told  to 
walk  in,  by  the  defendant  or  one  of  the  family,  he  may  peaceably 
raise  the  latch  and  go  in.  By  breaking  open  an  outer  door  to  exe- 
cute civil  process,  the  officer  becomes  a  trespasser,'  and  to  kill  him 
is  not  murder,  but  manslaughter  only:  and  the  better  opinion  seems 
to  be,  that  when  the  writ  is  executed  under  such  circumstances,  the 
court  will  set  aside  the  levy  of  the  officer.(3)  But  the  officer  may, 
and  it  is  his  duty,  to  enter  the  open  door  of  the  house  of  the  defen- 
dant, and  seize  his  goods  there  found. **  When  in  the  house,  the 
officer  may  lawfully  break  inner  doors,  and  trunks,  in  order  to  get 
at  the  goods.^  The  officer,  before  he  breaks  open  an  inner  door, 
need  not  demand  admittance,  unless  there  be  a  probability  that  by 
so  doing  it  will  be  opened.  The  law  will  not  permit  him  to  use  any 
unnecessary  violence. ^ 

If  goods  of  the  defendant  are  brought  to  the  house  of  another 
to  prevent  a  lawful  levy  and  to  escajje  the  ordinary  process  of  law, 
and  the  owner  of  the  dwelling  house  connive  with  the  defendant  to 
effect  this  object,  the  officer,  after  denial  on  request  made  for  admit- 
tance, may  break  open  the  outer  door  of  the  house  to  seize  the 
goods  of  the  defendant.  If,  however,  goods  are  not  placed  in  the 
house  of  a  third  person  to  avoid  being  levied  upon,  or  are  placed 
there  for  that  purpose  without  the  knowledge  of  the  owner  of  the 

(t)  12  Mass.  Rep.  506;  7  Td.  43;  15  Id.  534;  (b)  Yelv.29:  Campb.  1;  22  Eng.  C.  L.  Rep.  406. 

9  Johns.  Rep.  96;  Wriirht's  Rep.  455.  (c)  Cro.  C.  537. 

(v)  1  Pick.  Rep.  399;  4  Cow.  461.  467.  (d)  5  Co.  92. 

(w)  Storv  on  Bailni.  23R,  239.  (e)  5  Johns.  Rep.  352. 

(a)  7  T.  R.  11;  8  Co.  191;  2  Cow.  Kep.  543.  (g)  4  Taunt.  619;  6  Id.  246. 

(.3)  If  it  be  a  writ  in  a  civil  case  for  the  body,  the  court  will  discharge  the  de- 
fendant when  taken  under  such  circumstances.      Yelv.  89,  i-  n.{l) 


§3,4.]  EXECUTION LEVY.  149 

house,  the  officer  will  be  a  trespasser  if  he  breaks  open  the  outer 
door;  but  having  obtained  a  peaceable  admission,  he  may  break 
open  inner  doors,  and  trunks,  to  get  at  the  goods  of  the  defendant. 
There  is,  however,  this  difference  between  entering  the  house,  or 
breaking  open  the  inner  doors  of  the  house  of  the  defendant  and  of 
a  stranger;  that  in  the  former  case  the  justification  of  the  officer 
does  not  depend  on  his  finding,  or  not  finding  the  defendant's  goods 
therein;  but  in  the  latter  case  he  is  a  trespasser,  if  the  defendant 
had  no  goods  in  the  house  liable  to  be  taken  in  execution.*^  A 
building  standing  separate  and  apart  from  a  dwelling  house,  and 
not  within  the  curtilage,(4)  such  as  an  out-house,  or  barn,  or  a  store, 
shop,  or  warehouse,  may  be  broken  open.*^  If  the  property  of  the 
defendant  is  in  a  barn,  or  other  out-house,  of  another  person,  which 
is  not  situate  within  the  curtilage,  it  may  be  broken  open  under  the 
same  circumstances  and  liabilities  as  the  inner  door  of  the  house  of 
a  third  person. 


Sec.  IV. — WHAT  is  a  good  levy,  and  what  is  not. 


To  constitute  a  good  levy,  the  officer  must  have  the  property 
under  his  view  and  within  his  power,  as  far  as  the  nature  of  the 
property  will  permit.  Where  a  sheriff' seized  a  few  articles  outside 
of  a  store,  or  warehouse,  and  proclaimed  a  levy  on  the  goods  locked 
up  within  the  store,  and  not  within  view,  the  court  held  this  not  to 
be  a  levy,  but  that  the  officer  ought  to  have  broken  open  the  store, 
and  actually  seized  the  goods.°  Although  an  officer  may  levy  upon 
part  of  the  goods  in  a  house  in  the  name  of  the  whole,  and  such 
levy  will  be  good  for  all,^  yet,  if  after  he  has  made  the  levy,  he 
abandon  the  property  to  the  possession  of  the  owner,  without  tak- 
ing any  immediate  steps  to  remove  it,  and  without  taking  bond 
under  the  statute  for  its  delivery,  it  will  in  general  be  considered  as 
an  abandonment  of  the  levy  itself,  and  a  subsequent  execution,  af- 
terwai'ds  levied  upon  the  same  goods,  would  gain  a  preference.** 
Where  the  officer  went  into  the  house  of  the  defendant,  and  stated 
that  he  came  to  levy  on  his  goods,  and,  laying  his  hands  on  a  table 
and  saying,  "I  take  this  table,"  locked  up  his  pxecution  in  the  table 
drawei^,  and  took  the  key  and  went  away  without  leaving  any  per- 
son in  possession,  or  taking  any  further  steps  to  obtain  a  control 
over  the  property,  it  was  holden  by  the  court  that  there  was  no 
claim  on  any  of  the  goods  by  such  a  levy,  and  that  the  officer  had 
neither  actual  nor  constructive  possession  after  he  Icl't  them/  It 
must  not  be  supposed  from  what  is  here  said,  that  the  officer  will 
lose  his  levy  if  he  leave  the  goods  for  the  purpose  of  procuring  the 

(c)  5  Taunt.  771.  (k)  1  Ld.  Raym.  724. 

(d)  16  Johns.  Rep.  287.  (Ii)  4  Dnll.  213.  f35R.  169,    4  Y.ntea,  194,  .ind 

(e)  Id.  ill.  casfis  there  cited.    Contra,  3  Cow.  Ucp.'2^2. 

(i)    1  M.  and  S.  712. 

(4)   Curtilage  —  the  inclosed  yard  aiouiul,  and  belonging  to  the  dweUing  house. 


150  EXECUTION LEVY.  [Pr/.  1,  C//,  23, 

means  of  rcniovinfif  thcin.  On  the  contrary,  an  officer  may  always 
have  a  reasonable  time  to  remove  the  goods.  What  is  a  reasona- 
ble time,  must  depend  ujion  the  nature  oi"  the  goods,  and  other  cir- 
cumstances. If,  for  instance,  a  pile  of  firewood  is  levied  upon,  the 
levy  will  hold  the  property,  although  the  constable  omit  for  a  few 
days  to  remove  it.''  So,  there  may  be  cases  where  tlie  property 
is  of  so  little  value  in  proportion  to  its  weight  and  the  expense  and 
time  required  to  remove  it,  that  the  levy  would  be  good  although 
the  officer  permitted  the  property  to  remain  on  the  premises  of  the 
defendant  until  the  sale. 

If  all  the  possession  be  taken  of  which  the  thing  levied  upon  is 
capable,  it  will  be  sufficient;  thus,  standing  grain  may  be  levied 
upon,  and  left  in  the  field.  Property,  however,  of  a  portable  kind, 
should  be  taken  possession  of  by  the  officer,  unless  the  defendant 
will  give  security  for  its  re-delivery. 

The  officer  cannot  with  his  own  money  pay  the  plaintiff,  and  af- 
terwards levy  the  execution  on  the  pi'operty  of  the  defendant,  even 
though  it  were  agreed  between  him  and  tlie  defendant  that  he 
should  retain  the  execution  and  use  it  for  his  own  indemnity;  for 
by  the  payment,  the  execution  is  spent.  Such  agreements  are  ille- 
gal, as  they  tend  to  oppression  and  abuse.  The  officer,  therefore, 
cannot  take  a  bond  or  other  security  from  the  defendant,  and  detain 
the  execution  in  his  hands  and  use  it  afterwards  to  enforce  the  pay- 
ment of  the  money  advanced  by  him.^  So,  if  the  officer  levies  on 
goods,  and  pays  the  plaintiff  with  his  own  proper  money,  he  cannot 
keep  the  goods  for  his  own  security;  the  levy  is  discharged,  and 
gone."     He  may  have  his  action  for  the  money."* 

The  plaintiff's  releasing  the  levy,  will  in  general  discharge  the 
judgment,  and  the  plaintiff  must  then  resort  to  the  new  contract,  if 
any  has  been  made.  But  such  release  of  the  levy  will  not  dis- 
charge the  debtor  where  he  procures  the  lease  by  his  own  act,  as, 
by  pretending  that  the  property  is  owned  by  others." 


Sec.  V. —  OF  the  effect  of  a  levy. 

The  moment  the  officer  has  the  property  under  his  view  and  con- 
trol by  virtue  of  the  execution,  he  has  a  right  to  take  possession, 
and  in  genei'al  becomes  liable  to  the  plaintitf  and  defendant  for  its 
application  to  the  payment  of  the  judgment. 

The  defendant  cannot,  in  general,  after  the  levy  is  made,  do  any 
act,  (as  by  assignment  to  the  commissioner  of  insolvents,?  or  other- 
wise,) to  change  the  effect  of,  or  destroy  the  levy;  nor  can  he  main- 
tain an  action  for  any  wrong  or  injury  done  to  the  goods  by  any 
person  who  takes  them  or  injures  them  while  in  the  possession  of 
the  officer.     His  sole  remedy  is  against  the  officer. "i 

If  goods  levied  upon  are  claimed  by  a  third  person,  and  deliver- 

(k)  15  Johns.  Rep-  428.  (o)  fi  Cow.  192. 

(1)  7  Id.  426;  15  Id.  443;   12  Id.  207.  (p)  Wrizlii's  Rep.  259. 

(m)  Id.  ib.  (q)  2  Mass.  Rep.  514;  Story  on  Bailm.  96. 

(n)  3  Johns,  Rep.  434;  14  Id.  87. 


§5,6.]  EXECUTION RE-DELIVERY  OF  GOODS.  151 

ed  to  him  under  the  order  of  a  justice,  the  levy  is  gone,  and  all  the 
parties  will  then  be  in  the  same  situation  they  were  in  before  the 
levy  was  made.  But  when  goods  of  the  defendant  sufficient  to  sat- 
isfy the  judgment  are  seized  on  an  execution,  and  the  officer  wastes 
them,  or  neglects  to  sell  them,  or  misapplies  the  money  arising  from 
the  sale,  or  fails  to  return  the  writ,  the  plaintiff  must  look  to  the 
officer  for  payment  of  the  judgment;  the  debtor  is  discharged  by 
an  adequte  seizure,  and  the  plaintiff  cannot  have  another  execution, 
or  levy/  So,  when  goods  of  the  defendant,  not  sufficient  to  satisfy 
the  judgment,  are  seized,  the  plaintiff  must  look  to  the  officer  for 
their  value  or  avails,  and  cannot,  before  the  goods  are  sold  or  the 
levy  disposed  of,  have  an  execution  against  the  body  of  the  defend- 
ant/ The  constable  being  responsible  as  well  to  the  plaintiff  as 
the  defendant,  may  sue  any  person  who  wrongfully  takes  the  goods 
from  his  possession,  or  otherwise  unlawfully  intermeddles  with  or 
injures  them.'  In  such  suit,  the  indorsement  of  the  levy  upon  the 
execution  will  be  sufficient  evidence  (imtil  disproved)  of  the  fact  of 
the  levy.^ 


Sec.  VI. — WHEN  the  property  levied  upon  may  be  left  in  the  posses- 
sion OF  the  debtor,  by  the  constable  or  by  the  plain- 
tiff, WITH  form  of  bond  FOR  KE-DELIVERY. 

We  have  already  seen  that  the  officer  ought  not  to  leave  proper- 
ty levied  upon  with  the  debtor,  unless  he  gives  security  for  its  re- 
delivery. There  are,  however,  some  kinds  of  property  which,  from 
their  nature,  cannot  be  immediately  removed.  If,  for  instance, 
growing  corn,  or  other  crop  not  entirely  ripe,  be  levied  upon,  it 
would  be  neither  necessary  nor  right  for  the  officer  to  immediately 
remove  if^  But  he  could  levy  and  sell,  without  removing  it,  and 
the  purchaser  would  have  a  right  to  afterwards  enter  upon  the  land 
and  gather  it* 

The  statute  of  this  State  provides,  that  any  constable  having 
levied  on  goods  and  chattels,  of  which  he  permits  the  party  against 
whom  the  execution  issued  to  retain  the  possession,  is  authorized  to 
take  such  security  for  his  own  indemnity  as  he  may  require,  that 
such  property  shall  be  delivered  at  the  time  and  place  appointed 
for  the  sale  thereo£''(4)     The  constable  is  not  bound,  in  any  case, 

(r)  4  Mass.  Rep.  403,  per  Parsons,  C.  J.;   12  (t)  2  Mass.  Hep.  514;  9  1(1.  104;  1  Pick.  Rep. 

Johns.  Rep.  207;  7  IiL  42a;  4  Cow.  Rep.  389. 

417;  7   Id.  21.  310;   3  Oliio  Rep.  225;  (v)  7  Cow.  Rep.  313. 

5    Id.    173;  Salk.  323;  4  Johns.   Chy.  (w)  2  Johns.  Rep.  418;  7  Mass.  34,  and  see  7 

Rep.  255.  Cow.  Rep.  5G0. 

(a)  6  Taunt.  Rep.  369.  (a)  9  Johns.  Rep.  108. 

(b)  Slat.  520,  $83. 

(4)    Form  of  a    bond  of  indemnity  for  the  rc-delivery  of  property  taken  on 

execution. 

Know  all  men  by  these  presents,   That  \vc,   A IJ ,   ami  C I) , 

arc-  lield  and  firmly  Iximid  unto  1 J ,  in  the  sum  of dollars,  for  the 


162  KXECUTION KK-nELIVERY  OF  GOODS.  [Prt.  1,   Ch.  23, 

to  lenvc  the  property  in  the  hands  of  the  debtor,  even  if  security  be 
otiered  for  its  re-delivery;  and  he  oiiffjit  in  no  case  to  do  it,  unless 
the  security  be  ample:  ior  he  is  liable  to  the  i)laintitr(G)  at  least  for 
the  value  of  the  goods,  in  case  they  are  not  i^e-delivered,  whether 
he  take  a  bond  or  not.*^  The  very  object  of  the  bond  is  to  meet 
this  liability. 

The  del'endant,  or  other  person  Mdio  has  possession  of  the  goods 
under  the  othcer,  may  probably  maintain  an  action  for  a  disposses- 
sion, or  any  injury  done  to  them  by  a  wjongdoer.''  Whether  the 
constable  may  sue  any  constable  or  other  person  v^^ho  takes  or  in- 
jures the  pro}ierty  while  it  is  thus  left  in  the  hands  of  the  defendant 
for  safe  keeping,  is  very  doubti'ul.®  He  has  a  remedy,  in  such  case, 
on  the  bond  taken  by  him  for  the  re-delivery  of  the  goods.  But 
if  he  takes  no  bond,  or  leaves  them  with  any  other  person  than  the 
defendant  for  safe  keeping,  he  may  sue  a  wrong-doer  who  dispos- 
sesses such  third  person,  or  injures  the  goods.^ 

(c)  11  Mass.  Rep.   163;   15  id.   10;    12  Johns.  337,  the  other  way.    Sec  13  Mass.  Rep. 

Rep.  207;  fi  Ohio  Rep.  4  19.  394;  G  Jolin's  Rep.  106;   14  Mass.  Rep. 

(d)  Story  on  Bailm.  98,  $133,  where  tlie  cases  217;  7  Cow.  Rep.  294;  Story  on  Baihn. 

upon  this  suhject  are  reviewed.  95,  §127;  8  Cow.  Rep.  137.     See  anto 

(e)  6  Ohio  Rep.  451,  one  way;  Wright's  Rep.  p.  151. 

(g)  Id.; 


payment  of  which  we  do   liereby  jointly  and  severally  bind  ourselves.     Sealed 

with  our  seals,  and  dated  this day  of ,  A.  D.  18 — . 

■\Vhereas,  the  above  named  I J ,  constable  of township,  

county,  by  virtue  of  a  writ  of  execution  duly  issued,  at  the  suit  of  A B , 

by  G II ,  a  justice  of  the  peace  in  and  for  said  county,  on  the  —  day  of 

,  A.  D.  18 — ,  to  make  of  the  goods  and  chattels  of  C D ,  the  sum 

of  [here  insert  the  amount  of  the  execution,  and  costs,]  hath  seized  the  following 
goods,  [here  give  a  schedule  of  the  goods,]   and  left  them  in  the  possession  of  said 

C D ,   at   the  request  of  the  above   obligors.      Now,  if  the  said  C 

D shall  re-deliver  said  goods  and   chattels  unto  the  said  I J ,  in  as 

good  condition  as  tliey  are  now  in,  at  the  time  and  place,  when  and  where  tliey 
may  be  offered  for  sale  under  said  levy;  and  in  default  thereof  pay  all  the  damages, 
costs,  charges,  and  expenses,  to  which  the  said  I J may  be  liable  or  sub- 
jected by  reason  of  such  non-dcliveiy  of  said  property;  then  this  obligation  to  be 
void:  otherwise  in  full  force  and  virtue. 

A B ,    (Seal.) 

C D ,    (Seal.) 


(6)  The  officer,  when  he  retains  the  goods,  or  leaves  them  with  any  other  per- 
son than  the  debtor,  is  in  general  liable  also  to  the  debtor  for  a  due  re-delivery  of 
the  property  seized,  in  case  of  the  satisfaction  of  the  judgment  by  ]5aymcnt  or 
otlierwise;  it  behooves  him  therefore,  to  take  care  that  he  does  not  put  them  in 
jeopardy  by  any  act  of  his  own.  If  the  goods  are  lost  by  his  negligence,  or  the 
negligence  of  sucli  third  person  with  whom  he  leaves  them,  he  will  be  responsi- 
ble therefor.  6  Johns.  Rep.  9.  But  what  degree  of  negligence  M'ill  make  the 
officer  responsible,  does  not  seem  to  have  been  directly  decided.  lie  would 
doubtless  be  responsible  for  gross  negligence,  and  fraud;  and  would  probably  be 
liable  for  a  loss  which  occurred  from  an  omission  of  tiiat  ordinary  care  which  it 
may  be  supposed  a  man  of  common  prudence  would  have  exercised  in  the  pre- 
servation of  property  of  a  like  kind,  under  like  circumstances.  Story  on 
Builm.  96,  §130. 


§6.]  EXECUTION RE-DELIVERy  OF  GOODS.  153 

When  cattle,  or  live  stock,  are  taken  in  execution,  the  justice 
may  allow  the  constable  for  keeping  them  a  reasonable  compensa- 
tion, which  is  taxed  and  collected  with  the  other  costs  of  the  suit.* 

The  statute  does  not  allow  any  compensation  to  an  officer  for 
merely  removing  goods. 

It  may  happen  that  a  plaintiff,  in  order  to  secure  his  judgment, 
will  direct  a  levy  to  be  made,  and  from  motives  of  humanity,  and 
without  any  intention  to  commit  a  fraud,  will  also  direct  the  officer 
to  take  a  bond  for  the  re-delivery  of  the  property,  and  to  proceed 
no  farther  with  the  execution  until  further  ordered,  or  until  som.e 
specific  day.  If  such  a  practice  were  sanctioned  by  the  law,  so 
that  a  subsequent  execution,  issued  on  another  judgment,  could  not 
take  the  same  goods,  it  would  open  the  door  to  daily  collusion  and 
fraud.  The  law  makes  no  exception  in  such  cases,  and  could  not, 
practically,  in  favor  of  humane  plaintiffs.  When,  therefore,  such 
an  arrangement,  or  any  arrangement  by  which  the  defendant  re- 
tains possession  of  the  goods,  and  further  proceedings  on  the  exe- 
cution are  stopped  or  stayed  by  the  plaintiff  but  for  a  day,  a  subse- 
quent execution  may  afterwards,  and  while  such  stay  remains,  be 
levied  upon  the  same  goods,  and  will  obtain  a  preference  and  prio- 
rity over  the  first  levy  and  execution. ''(7)  The  law  will  not  per- 
mit a  plaintilt  to  use  a  levy  merely  as  a  security  for  a  judgment,  if 
such  levy  will  interfere  with  other  executions, 

(a)  Stat.  519,  $80, 

(b)  3  Wash.  C.  C.  Rep.  60;  11  Johns.  Rep.  110;     Rep.  419;  Salk.  720  ;  3  Raw.  Rep.  341  ;   8  Ser^. 

1  Wils.  Rep.  44;  4  Dall.  Rep.  (2d  ed.)  213.     and  Raw.  505;  17  Johns.  Rep.  274  ;  7  Cow.  Rep. 
358. 159. 169.  n.  (a);  Cowp.  432;  2  VVcnd.    310;  15  En^'.  Cora.  Law  Rep.  165. 


(7)  In  the  case  of  Berry  vs.  SmiUi,  (3  Wash.  C.  C.  Rep.  60,)  Washington-,  J., 
says:  "The  end  and  object  of  an  execution  is  to  obtain  satisfaction  of  the  debt  for 
which  it  issued,  and  being  delivered  to  tlie  proper  officer,  it  gives  to  the  creditor 
a  priority;  because  the  law  points  out  to  that  officer  his  duty,  which  is,  to  execute 
it  without  delay.  In  doing  this,  the  property  of  the  debtor  is  changed  and  vested 
in  the  officer,  for  all  the  purposes  of  that  execution.  The  change  of  possession 
by  levy  gives  notice  to  all  the  world  of  the  real  situation  of  the  debtor,  in  relation 
to  the  property  seized,  and  prevents  them  from  being  deceived  by  the  appear- 
ance of  wealth,  to  which  the  debtor  lias  no  just  pretensions.  If  the  officer  is  or- 
dered by  the  plaintiff  to  levy  on,  but  to  leave  the  property  with  the  owner  until 
he  shall  be  otlierwisc  directed,  the  party  undoes  by  such  an  order  all  that  the  offi-. 
cer  does  by  the  seizure:  it  is  no  levy  in  respect  to  third  persons.  It  is  not  neces- 
sary that  tiie  officer  should  remove  or  advertise  tlie  property  for  sale  immediately, 
if  this  be  done  in  a  reasonable  time.  But,  he  has  effected  nothing,  if,  by  the  pLiin- 
tiff's  order,  he  leave  the  prof)crty  with  the  debtor,  to  exercise  every  act  of  owner- 
ship over  it  which  he  could  have  done  before  the  seizure.  It  will  be  perceived, 
that  in  laying  down  this  principle,  the  court  makes  no  distinction  between  a  sus- 
pension for  one  day,  or  one  or  more  months.  The  order  of  suspension  by  the 
plaintiff,  deprives  the  act  of  the  officer,  in  pursuance  of  it,  of  .all  its  force  .ind  ef- 
fect, until  it  is  restored  by  a  countermand;  and  if  in  the  meantime,  (while  the  sus- 
pension continues,)  a  second  execution  is  taken  out  and  levied,  the  former  must  be 
postponed." 

20 


154  EXECUTION RE-l/ELIVilRY  OF  GOODS.        [Prl.  1,  C/d.  23, 

If  the  iilaintilT  directs  that  the  goods  remain  with  the  debtor, 
without  bond  ibr  their  rc-dehvery,  while  they  so  remain,  the  Hen  of 
the  execution  is  in  general  lost.  Tlie  ibrce  and  effect  of  the  levy 
may  be  restored  by  a  countermand  of  such  direction,  but  not  after 
a  levy  has  l)ecn  made  upon  the  goods  by  a  suljsc(iucnt  execution.*' 
And  even  where  a  bond  has  been  executed  l)y  the  defendant  for  the 
re-delivery  of  the  in-oi)erty,  if  the  plaintilf  afterwards  give  any  in- 
dulgence to  the  defendant  by  which  he  stops  the  regular  course  of 
executing  the  writ,  he  will  so  far  lose  hislien  on  the  property,  that 
if,  while  the  proceedings  are  thus  stayed,  another  execution  be  is- 
sued and  levied,  it  will  hold  the  property.  So,  when  goods  remain 
in  the  possession  of  an  officer  under  a  levy  for  a  long  time,  by  the 
consent  of  the  ])laintiir,  a  subsequent  execution  issued  on  another 
judgment  may  be  levied  upon  them,  and  will  gain  a  preference.'^ 
There  may  be  circumstances  arising  from  the  nature  and  situation 
of  the  property  itself,  which  will  justify  the  plaintiff  in  delaying  a 
sale.  If  the  property  be  in  such  a  condition  that  a  great  sacrifice 
would  be  made  upon  it  by  an  immediate  sale  and  delivery,  the  plain- 
tilf will  not  lose  his  lien  by  a  delay  until  such  time  that  the  sacrifice 
will  not  be  incurred  by  a  sale.  Thus,  where  hides  undergoing  the 
process  of  tanning,  and  in  vats,  were  levied  upon  in  the  fall  of  the 
year,  and  could  not  be  sold  until  spring  without  a  great  sacrifice, 
and  the  plaintiff  therefore  directed  the  officer  to  delay  a  sale  until 
spring,  it  was  held  by  the  court  that  this  did  not  render  the  execu- 
tion dormant,  or  fradulent,  so  as  to  give  subsequent  executions  a 
preference.^ 


Sec.    VII. EFFECT  OF   THE  DEATH   OF    EITHER   PARTY  TO  A  JUDGMENT^ 

AFTER  LEVY, 

Although  an  execution  cannot  issue  rtfter  the  decease  of  either  of 
the  parties  to  a  judgment,  yet  if  an  excution  has  been  issued  and 
levied  during  the  lifetime  of  both  parties,  the  death  of  either,  or 
both,  does  not  prevent  the  officer  from  proceeding  to  advertise  and 
sell  the  property,  in  the  same  manner  as  if  both  were  living.^  The 
justice  may,  as  in  other  cases,  issue  a  venditioni  exponas  for  tliat 
purpose. 


Sec.  VIII.  —  OF  the  advertisement  and  sale. 


The  statute  provides,  that  property  taken  in  execution  shall  be 
advertised  for  sale  at  four  of  the  most  public  places  within  the 
township  where  seized,  at  least  ten  days  previous  to  the  time  ap- 
pointed for  such  sale;  and  that  the  sale  shall  be  held  between  the 
hours  of  ten  o'clock  in  the  forenoon,  and  four  o'clock  in  the  after- 

(c)  Sec  the  authorities  last  cited.  (g)  7  T.  R.  20  ;   1  Bos.  and  Pul.  571 ;    5  Oliio 

(d)  15  Eng.  Com.  Law  Rep.  165.  Rep.  221 ;   2  Id.  290. 

(e)  7  Cow.  Rep.  560. 


§7,8.]  EXECUTION SALE  ON.  155 

noon,  at  the  house  or  on  the  premises  where  taken,  or  at  one  of  the 
most  public  places  within  the  township.''(8) 

The  articles  should  be  pointed  out  to  the  bidders,  and  should  not 
be  sold  in  a  mass.(9)  If  the  property  cannot  be  sold  without  a  very 
great  sacrifice,  (such  as  a  bid  of  ten  dollars  for  a  horse  worth  forty,) 
the  officer  ought  not  to  strike  it  off,  if  it  be  the  first  time  it  is  offered 
for  sale,  but  may  return  the  writ,  that  it  remains  unsold  in  his  hands 
for  want  of  buyers,  even  if  the  plaintiff  instruct  him  otherwise.* 
But  he  should  not  perhaps  withhold  the  property  in  this  way,  from 
sale,  more  than  once.  If  there  be  time,  he  may  again  advertise. 
And  the  officer  must  in  such  cases  act  in  good  faith;  for  he  will 
render  himself  liable  for  a  false  return,  if,  in  order  to  favor  the  defen- 
dant, or  to  prevent  a  satisfaction  of  the  execution,  he  refuses  to 
strike  off  the  property. 

If  the  justice  of  the  peace  who  issued,  or  the  constable  who  holds 
the  execution,  purchase  at  such  sale,  either  directly  or  indirectly, 
they  will  be  liable  not  only  to  the  action  of  the  party  injured,  but 
to  a  fine  of  not  less  than  five,  nor  more  than  one  hundred  dollars, 
which  may  be  recovered  against  them  in  an  action  of  debt,  in  the 
name  of  the  State  for  the  use  of  the  township.'^ 

If,  with  a  view  to  prevent  competition,  and  for  the  purpose  of 
purchasing  together  property  offered  for  sale,  by  a  public  officer^  two 
or  more  persons  agree  not  to  bid  against  each  other,  the  sale  to  one, 
for  the  benefit  of  all,  will  be  void.'  This  rule,  however,  is  not  ap- 
plicable to  a  sale  at  public  auction,  where  the  owner  of  the  property 
voluntarily  puts  it  up  to  sale.  .i 

A  person  who  bids  at  an  auction,  or  other  public  sale,  has  a  right 
at  any  time  before  the  article  is  struck  down  to  him  by  the  officer 
or  auctioneer,  to  withdraw  his  bid;  but  when  the  hammer  is  down, 
the  sale  is  comj)lete,  and  both  parties  are  bound  by  the  contract.'" 
If  the  purchaser  then  refuses  to  pay  for  the  article,  the  auctioneer 
or  officer  may,  it  is  believed,  again  put  it  up  and  sell  it,  and  the  first 
purchaser  will  be  liable  for  the  difference  between  his  bid  and  that 
for  which  the  article  finally  sold." 

Hi)  Stat.  519,  <i78.  (1)  2  Ohio  Rep.  504. 

(i)  3  Camhp.  521;  2  Etifj.  C.  L.  Rep.  287;  (m)  3  T.  R.  148. 

2  Cow.  Rep.  139.  (n)  3  Ohio  Rep.  464;  Wri!?ht'.s  Rep.  555,  per  Lane, 
(k)  Stat.  519,  $79.  J.;  15  Eng.C.  L.  Rep.  131,  ;'er  Best,  C.  J. 

(8)  Form  of  ^Idvertisement  of  sale  hy  Constable. 

CONSTABLE'S  SALE. 

At  or  about  -—  o'clock  A.  M.  [or  P.  M.,  as  flic  case  may  he],  on  the clay 

of ,  18 ,  at  [here  slate  the  place  of  sale,]  in  the  township  of ,    I  shall 

sell  at  public  vendue,  tlie  following-  property,  to  wit:  [here  copy  the  inventory  of 

the  property:]  taken  as  tlic  proijerty  of  C D ,  to  satisfy  an  execution  ag-ainst 

liim  in  favor  of  A B . 

,  ,  18—.  I J ,  Constable. 

(9)  Where  a  quantity  of  property  of  different  kinds  is  sold  in  a  mas.s,  without 
the  consent  of  both  parlies  to  tlie  judgment,  by  means  of  which  the  jiropcrty  is 
sacrificed,  tlie  purchaser,  if  he  induced  such  sale,  would  not  take  anything-  by  tlie 
purcliasc,  but  the  sale  would  be  considered  fraudulent  and  void.  14  Johns.  Hep. 
S.^g;   9  Cmn.  274. 


156  EXECUTION RETURN.  [iPr^,  1 ,    C/i.  23, 


Sec.  IX.  —  OF  the  title  which  a  purchaser  acquires  by  a  sale 
ON  execution. 


Tlic  diUcrcncc  between  a  void,  and  an  crroneons  judgment,  has 
already  been  stated. (10) 

A  sale  on  execution  to  a  bona  fide  purchaser  cannot,  in  general, 
be  defeated  for  error  in  the  judgment,  or~h'jegularity  in  the  execu- 
tion, nor  on  the  ground  that  no  levy  was  made  until  after  the  return 
day  of  the  execution." 

If  the  judgment  or  execution  be  absolutely  void,  then  the  sale, 
and  all  the  proceedings  under  the  execution,  will  also  be  void;  as 
where  the  execution  is  issued  without  the  signature  and  seal  of  the 
justice,  or  the  judgment  is  rendered  in  an  action  for  slander,  libel, 
or  the  like. 

The  sale  on  execution  will  convey  no  better  title  to  the  ])urchaser 
than  that  which  the  judgment  debtor  liad  at  and  after  the  time 
when  the  property  was  levied  upon.(ll) 

When  lands  are  let  resei'ving  rent  in  kind,  and  the  crop  growing 
or  grown  thereon  is  levied  upon,  or  attached,  by  virtue  of  an  exe- 
cution, attachment,  or  other  process,  against  the  landlord  or  tenant, 
the  interest  of  such  landlord  or  tenant  against  whom  such  process 
was  not  issued,  is  not  aflccted  thereby;  but  the  crop  is  sold  subject, 
in  the  hands  of  the  purchaser,  to  the  claim  or  interest  of  the  land- 
lord or  tenant,  (whichever  it  be.)  against  whom  such  process  did  not 
issue :°  in  other  words,  the  purchaser  will  stand  m  the  shoes  of  the 
defendant,  and  his  interest  in  the  crop  will  be  subject  to  claim  for 
rent  or  division,  according  to  the  contract  of  the  defendant  in  rela- 
tion to  the  land. 


Sec  X. — OF  the  return  of  executions,  and  the  forms  thereof. 

The  statute  provides,  that  the  constable  shall  make  out  and  an- 
nex to  his  return,  where  he  has  made  a  sale,  a  true  inventory  of 
each  article  levied  upon  and  sold,  and  the  price  at  which  it  was 
sold;  and  where  he  has  levied  upon  property  which  remains  unsold, 
(for  want  of  bidders,  or  other  just  cause,)  he  shall  return  with  the 
execution  a  schedule  of  all  such  goods  and  chattels:  and  for  each 
and  every  neglect  to  return  a  true  and  accurate  inventory  or  sche- 
dule, of  property  sold  or  remaining  unsold,  and  if  sold,  the  price  at 
which  the  same  was  sold,  the  constable  shall  pay,  on  conviction 
thereof,  any  sum  not  exceeding  one  hundred  dollars,  to  be  recover- 
ed by  action  of  debt,  in  the  name  of  the  )State,  for  the  use  of  the 

(n)  13  Johns.  Rep.  97.  (o)  Stat.  520,  $84. 

(10)  Sec  pag-e8.  (11)  See  pa^e  150. 


§9,  10.]  EXECUTION RETURN.  167 

party  injured  thereby.?  The  constable  may  be  prosecuted  before 
any  court  havmg  cognizance  ol"  the  oflence. 

The  statute  further  provides,  that  in  all  cases  where  the  constable 
shall  make  it  appear  to  the  satisfaction  of  the  justice,  that  he  has 
been  deprived  of  an  opportunity  of  levying  an  execution  within  the 
time  prescribed  by  law,  or  otherwise  prevented  from  making  the 
whole  of  the  money  therein  required  to  be  made,  and  shall  make 
return  to  the  justice  who  issued  the  same  to  that  effect,  the  justice 
may  issue  further  process  of  execution  for  the  amount  or  balance 
remaining  unsatisfied.''  This  statute  will  not  excuse  a  neglect  or 
breach  of  duty  on  the  part  of  a  constable. 

The  execution  must  be  returned  within  thirty  days  from  its 
date. '■(12)  The  constable  can  do  no  act,  under  the  execution,  after 
the  thirty  days.     The  latest  period  for  making  a  levy,  is  the  return 

(p)  Slat.  520,  581,  82.  (r)  Id.  517,  §66. 

(q)  Id.  524,  §101. 


(12)  When  the  computation  of  time  in  a  statute  is  to  be,  as  in  the  above  in- 
stance, from  the  date,  or  from  an  act  clone,  the  day  of  the  date,  or  of  the  act,  is 
excluded  from  the  computation.  For  instance,  if  the  execution  is  dated  the  7th 
March,  it  will  be  returnable  within  thiity  days  from  the  date,  and  therefore  the 
7th  of  March  must  be  excluded  from  the  computation,  and  the  constable  would 
have  the  whole  of  the  6th  day  of  April  in  which  to  execute  and  return  it.  6  Cow. 
Rep.  659.  So  the  statute  pi-ovides,  that  to  perfect  an  appeal,  the  recog-nizance 
shall  be  entered  into  within  ten  days  from  the  rendition  of  the  judgment.  If  the 
judgment  is  rendered  on  the  first  day  of  April,  the  party  will  have  the  whole  of 
the  11th  day  of  A]5ril  to  enter  into  recognizance.  2  Cow.  Hep.  605;  1  Serg.  & 
R.  411;  3  id.  496;  15  Ves.  jun.  248;  15  Muss.  Rep.  193.  The  same  rule  prevails 
where  a  note  is  given  payable  in  one  or  more  days  after  date.     8  Mass.  453. 

In  this  State,  when  months  are  mentioned  in  a  statute,  they  are,  perhaps,  under- 
stood to  be  calendar  months,  and  not  lunar  months  of  four  weeks.  The  rule, 
however,  is  not  settled  by  the  supreme  court.  It  has  been  decided  in  New  York, 
(2  Cow.  Rep.  518,)  tliat  fifteen  months  mentioned  in  a  statute  for  the  redemption 
of  land,  are  intended  to  be  calendar  months.  See  also  2  Camp.  Rep.  294;  2  Mass. 
170;  4  Mass.  460;  2  Mod.  58;  2  Chit.  Gen.  Pruc.  148. 

AVhen  a  note  is  payable  one  or  more  months  after  date,  calendar  months  are 
supposed  to  be  intended.      1  Johns.  Ca.  99. 

When  months  are  mentioned  in  a  contract,  or  agreement,  they  must  be  consid- 
ered months  of  four  weeks  each,  or  calendar  months,  according  to  the  nature  of 
the  subject  matter  of  the  agreement  and  the  intention  of  the  parties,  to  be  gath- 
ered from  the  agreement.  ''  \  M.  &  S.  \\\;  1  Eng.  C.  L.  Rep.  404.  No  fixed 
and  definite  rule  can  be  laid  down;  though  in  g'eneral,  when  the  intention  of  the 
parties  does  not  appear,  either  from  the  general  custom  in  relation  to  the  subject 
matter  uf  the  contract,  or  from  its  terms,  the  months  would,  it  is  believed,  be 
deemed  calendar.  When  a  person  agrees  to  work  for  another  one  or  more  months, 
the  custom  of  the  country  has  fixed  the  time  intended. 

A  contract  to  complete  a  work  by  a  particular  month,  as  "by  the  month  of 
May,"  means  that  it  sliall  be  done  before  that  time.     3  Pennsyl.  48. 

As  to  years. — An  action  was  brought  upon  a  jiolicy  of  insurance  for  insuring"  the 
life  of  Sir  H.  II.  for  one  year  from  the  day  of  date.  The  policy  was  dated  Sep- 
tember .3,  1097,  and  Sir  M.  II.  died  the  3d  Se])tember,  1698.  The  court  held, 
that  the  year  did  not  expire  until  September  3,  1698,  was  fully  expired.  1  Ld. 
Raiim.  480.  A  person  is  considered  of  age  the  day  before  his  twenty-.second 
birlli  day.  2  Ld.  Rai/rn.  1096.  The  reason  given,  is,  that  the  law  will  not  no- 
tice the  fractions  of  a  day. 


158  EXECtJTION FORMS  OF  RETURNS.        \^Prt.  1,   Ch.  23, 

day  of  the  writ,'  If  nftcr  the  levy  the  ofTicer  should  discover  that 
all  the  property  seized  by  him  is  subject  to  a  previous  levy,  upon 
an  execution  sullicient  in  amount  to  exhaust  the  property,  he  may 
return  '••No  goods.'"'  But  in  such  case,  and  in  general,  if  an  officer 
returns  "no  goods,"  when  a  defendant  has  goods  in  his  possession 
which  the  officer  by  reasonable  diligence  could  have  found,  the  lat- 
ter takes  upon  himself  the  responsibility  of  proving,  in  the  action 
against  him  for  a  false  retiu'n,  that  such  goods  were  not  liable  to  a 
lew.  If  the  i)laintitf  in  the  action  against  the  officer  prove  that 
the'dcfendant  was  in  possessio)!  of  goods,  without  proving  owncrshi}) 
in  the  defendant,  the  return  of  "no  goods''  must  be  considered  false, 
unless  the  constable  should  prove  that  the  goods  belonged  to  some 
other  person  than  the  defendant,  or  that  they  were  otherwise  ex- 
empt from  seizure  on  the  execution,^  or  that  he  made  reasonable 
search  for  goods,  and  could  find  none.  Mere  inquiry  of  the  defen- 
dant, is  not  a  search. 


FORMS  OF  RETURNS. 

"When  no  jproperty  is  found. 

The  within  named  C ■  D hath  not  any  goods  or  chattels 

whereof  I  can  make  any  part  of  the  amount  of  this  execution. 

I J ,  Constable. 

June  1,  1845. 


A  like  return  %ipon  an  cxccuLion  against  Administrators  or  Exe- 
cutors. 

The  within  named  C D has  no  goods  or  chattels  which 

were  of  };he  within  named  W D ,  deceased,  at  the  time 

of  his  death,  in  the  hands  of  the  said  C D to  be  admin- 
istered, whereof  I  can  make  any  part  of  the  amount  of  this  exe- 
tion, 

I .1 ,  Constable. 

June  3,  1 840. 


When  part  of  the  amount  of  the  execution  is  made  hy  lewj  and  sale. 

By  virtue  of  this  writ,  I  levied  upon  the  goods  and  chattels  de- 
scribed in  the  schedule  hereto  annexed,  marked  A.  Advertised 
and  sold  the  same  to  the  several  persons,  and  for  the  prices,  therein 

named.      Made  thereby, dollars, cents.      For  fees, 

retained dollars,  cents.      Balance  paid  over  to  G 

H ,  justice  of  the  peace,  \or  say.,  if  it  be  .vo,  Balance  paid  over 

to  the  plaintiff.] 

(*<)  13  Joliiis.  Rep.  250.  (t)  1  Wend.  Rep.  92.  (v)  5  Wenil.  Rep.  309. 


§10.]  , 


EXECUTION FORMS  OF  RETURNS. 


159 


The  within  named  €■ D hath  not  any  more  goods  and 

chattels  whereof  I  can  make  the  residue  of  the  amount  of  this  exe- 
cution, on  any  part  thereof. 

I J ,  Constable. 

June  5,  1846. 

Fees, . 


When  a  levy  is  made^  and  part  of  the  goods  are  sold. 


By  virtue  of  this  writ,  I  levied  upon  the  goods  and  chattels  of  the 

within  named  C D ,  described  in  the  schedule  hereunto 

annexed,  marked  A.  Advertised  the  same  for  sale,  and  sold  the 
following  articles,  parcel  of  the  same,  to  the  following  persons,  and 
for  the  sums  annexed  to  their  names: 

One  cow,  to  R L ,  for,         -         -         |10  00 

&c.  _ 

The  residue  of  said  goods  and  chattels  remain  in  hands  for  want 
of  buyers,  [and  are  sutiicient  in  value  to  satisfy  said  execution;  or 
say^  if  the  ainount  levied  on  be  not  sufficient  to  satisfy  the  execution^ 

The  within  named  C D hath  not  any  more  goods  and 

chattels  whereof  I  can  make  the  residue  of  the  amount  of  this  exe- 
cution.] 

Made  by  said  sale,         dollars, cents. 

For  fees,  retained,         dollars, cents. 

Balance  paid  over  to . 

I J ,  Constable. 

May  1.  1840. 

Fees, . 


When  a  levy  is  made.,  and  the  goods  remain  in  the  hands  of  the  con- 
stable for  leant  of  buyers. 


By  virtue  of  this  writ,  I  levied  upon  the  goods  and  chattels  of 

the  within  named  C D ,  described  in  the  schedule  hereunto 

annexed,  marked  A,  [which  are  of  sufficient  value  to  satisfy  the 
amount  of  this  execution;  or  say.,  if  the  fact  be  so.,  which  are  all  the 

goods  and  chattels  which  said  C D hath,  whereof  I  can 

make  the  amount  of  this  execution.]     Advertised  and  ofTercd  saiil 

goods  and  chattels  for  sale  on  the day  of ,   18 — .     Tiiey 

would  not  sell,  and  remain  with  me  unsold,  for  want  of  buyers. 
There  was  not  time  to  again  advertise. 

1 J ,  Constable. 

May  1,  1840. 
Fees, . 


IGO  EXECUTION FORM;?  OF  RETURNS.         [Prt.  1,  Ch.  23, 


W/icn  the  defendant  pays  tltc  amount  of  the  execution. 

Money  made  l)y  cash  paid  to  me  by  the  defendant,  being  

dollars, cents. 

For  fees,  retained,  dollars,  cents.     Balance  paid  to 


May  1,  1840. 
Fees,  — 


I — ■ —  J ,  Constable." 


When  the  property  levied  upon  is  claimed,  hy  a  third  person. 

By  virtue  of  this  writ,  I  levied  upon,  and  June  1,  1046,  adver- 
tised the  goods  and  chattels  of  the  wilhin  named  C D , 

described  in  the  schedule  heveunlo  annexed,  marked  A,  to  be  sold 

on  the day  of ,  184G;  and  June  10, 1  C46,  in  obedience  to  a 

\v)-iUen  order  of  G H .  j.  p.  of township,  hereunto 

annexed,  I  restoi'ed  the  following  properly  to  L S ,  claim- 
ant, to  wit:  \Jiere  name  the  articles  ordered  to  he  restored.  If  all  the 
propcrlii  levied  upon  is  not  ordered  to  be  restored.,  add :  Sold  the  residue 
of  said  goods  and  chattels  to  the  persons,  and  at  the  prices,  in  said 
schedule  set  forth. 

Made  thereby,  dollars, cents. 

For  fees,  retained,         dollars, cents. 

Balance  paid  over  to .  &c.] 

I  thereupon,  Jime  25,  18 — ,  levied  upon  the  goods  and  chattels 
of  the  wilhin  named  C D ,  described  in  the  schedule  here- 
unto annexed,  marked  B;  [which  arc  of  sufficient  value  to  satisfy 
the  amount  of  this  execution:  or  say.,  if  the  fact  he  w,  which  are  all 

the  goods  and  chattels  which  said  C D hath,  whereof  I  can 

make  the  amount  of  this  execution,]  There  was  not  time  to  adver- 
tise said  last  mentioned  goods  and  chattels,  after  said  levy. 

I J ,  Constable. 

June  25,  1846. 

Fees, . 


Fo7-tn  of  ScheduIe.(lS) 

(A) 

Schedule  of  property  levied  upon,  &:c.,  by  virtue  of  the  annexed 


writ: 


(13)  Tliis  schedule  is  in  g'eneral  referred  to  in  llie  return,  and  sliould  be  annex- 
ed to,  and  returned  with  tlie  execution.  (Stat.  .'J20,  §81.)  At  the  time  tlie  con- 
staljle  makes  a  levy,  lie  should  make  out  a  schedule  of  such  articles  separately, 
and  in  such  form  that  lie  can  afterwards  insert,  opposite  to  each  article,  the  name 
of  the  purchaser,  and  the  price  for  which  it  sold. 


§10.] 


EXECUTION FORMS  OF  RETURNS. 


161 


Articles  levied  -upon. 

One  Wagon,    .     .     . 
One  Cow,      .     .     .     . 
One  Ox  Yoke,      .     . 


Names  of  jnirchasers. 

John  Johnson,  .     . 
William  Stone,    .     . 
Charles  Martin, 


Price  sold. 

$35  00 

10  00 

1   00 


Amt.  $-46  00 


"When  Goods  are  sold.,  S^-c.  upon  a  venditioni  exponas. 

By  vii'tLic  of  this  writ,  I  advertised  and  sold  the  property  within 
■described,  to  the  persons,  and  for  the  prices,  following: 


Articles. 
One  iragon. 


JVamcs  of  purchasers, 
John  Johnson, 


Price  sold. 

,$35  00 


If  tlte  writ  commands  a  further  levy  andsale.^  say..  The  within  and 
above  described  property  being,  in  my  opinion,  insufficient  to  sat- 
isfy said  judgment,  I  levied,  [&c.,  setting  forth  what  is  done  or  could 
not  he  done  as  in  the  preceding  forms.^ 

Made  thereby, dollars, cents. 

Fees  retained,  dollars, cents. 


Balance  paid  over,  &c. 


I- 


Constable. 


May  1,  1846. 

'  Fees,  — 


When  there  is  a  levy  and  sale  of  leasehold  estate. 

June  1,  1850,  levied  upon;  Jujie  2,   1850,  duly  advertised;  and 

June  14,  1850,  sold  to  E F ,  by  public  vendue  and  outcry, 

for dollars, cents,  he  being  the  highest  and  last  bidder,  a 

certain  interest  of  the  within  named  C D ,  in  the  residue 

of  a  certain  term  of  years  to  come  and  unexpired,  in  the  following 
premises:  \Jiere  describe  the  premises  by  metes  and  bounds.,  or  in  an'i) 
other  manner.,  so  that  the  description  loill  shoio  the  extent  and  situation 
of  the  premises.']  Made  thereby,  [&:c,  stating  the  amount  made  Sfc, 
as  in  the  above  forms.] 

Form  of  a  bill  of  sale  for  leasehold  estate-." 


Whereas,  A — 
before  G H- 


B obtained  judgment  against  C D , 

— ,  a  justice  of  the  peace  of  the  township  of , 

in  the  county  of ,  by  action  of  debt.,  [or  traspass,  inserting  the 

name  of  the  action^]  on  the day  of ,  in  the  year ,  for  the 

sum  of ,  [here  insert  the  amount  of  the  Judgment  and  costs  for 

which  execution  issued;]  upon  which,  on  the day  of ,  A.  D. 

1  8 — ,  execution  in  due  form  of  law,  was  issued  and  delivered  by  said 
justice  to  the  undersigned,  then,  and  ever  siiK^c,  being  a  constable 
in  and  for  said  tovvnshi])  and  county,  against  the  goods  and  chattels 

(v)  3  T.  R.  292;  4  Rep.  74;  8  East's  Rep.  475. 

21 


1  62  EXECUTION LANDS.  [F/t.  1,  67/.  23, 

of  said  C D ,  to  make  the  sum  ol"  money  aturcsaid,  and  tlie 

costs  that  miglit  accrac.  By  virtue  of  wliich  said  \vrit  and  judg- 
ment, on  the day  of ,  in  the  yeai; ,  at  said  township, 

the  said  C D being  tiien  ;nid  there  possessed  of  a  certain 

interest  in  the  residue  of  a  certain  term  of  years,  then  to  come  and 
unexpired,  in  the  following  ])remises,  to  wit:  [here  describe  the  2>yem- 
ises,  by  metes  and  bounds^  or  bij  Uie  adjacent  premises^  or  in  any  oilier 
manner^  so  that  the  descinption  rmll  sliow  the  situation  and  extent  of  the 
premises  {]  situate  in  said  township,  the  undersigned  did  levy  upon 
said  interest  and  leasehold  estate  of  said  C D ,  above  de- 
scribed; and  by  virtue  of  the  same  writ,  did,  on  the day  of 

,  in  the  year ,  advertise,  as  tiie  law  i)rescribes,  said  interest 

and  estate  of  said  C D ,  to  be  sold  at ,  in  said  town- 
ship, on  the day  of ,  in  the  year -,  and  on  said  day  of 

sale,  between  the  liours  of  10  A.  M.  and  4  V.  M.  of  the  cloclx,  put 
up  said  interest  and  leaseiiold  estate  of  said  C D ,  at  pub- 
lic vendue  and  outcry;  and  E S having  bid  therefor 

dollars, cents,  and  he  being  the  highest  and  last  bidder,  said 

interest  and  leasehold  estate  of  said  C D ,  yet  to  come,  &c., 

as  above  described,  was  struck  ofl"  and  sold  to  him;  and  the  pro- 
ceedings in  the  premises,  and  said  writ,  duly  returned:  all  which 
will  more  fully  and  at  large  appear,  reference  being  had  to  the 
docket  and  files  of  said  justice's  court.  Now,  therefore,  the  under- 
signed, constable  as  aforesaid,  doth  hereby,  by  virtue  of  the  pro- 
ceedings above  referred  to,  and  in  consideration  of  said  purchase 

money  paid  by  said  E S ,  assign,  transfer,  and  convey  to 

him,  his  heirs  and  assigns,  the  said  interest  of  said  C D in 

the  residue  of  said  term  of  years,  to  come  and  unexpired,  in  said 
premises  above  described. 

I J ,  Constable  p^^     ,-, 

of township, county.  •-        '^ 

Executed  in  presence  of 

A B— , 

C D . 

The  constable  should  acknowledge  the   bill  of  sale  in  the  same 
manner  as  if  it  were  a  deed. 


Sec.    XI. SUGGESTION  OE  LANDS, 

When  an  execution,  in  a  civil  or  criminal  case,  is  returneil  unsat- 
isfied, in  whole  or  in  part,  for  want  of  goods  and  chattels  found 
whereon  to  levy,  and  it  is  suggested(t4)  to  the  justice  that  the 
judgment  debtor  hath  lands  or  tenements,  the  justice  must  enter 
such  suggestion  on  his  docket,  and  deliver  to  the  judgment  creditor 
or  his  agent,  on  application,  a  transcript  of  the  judgment,  proceed- 

(14)  This  suf^g-estion  may  be  made  to  the  justice  b}'  the  plaintiff  or  his  ag-ent, 
or  the  constable  may,  in  his  return  to  the  execution,  say,  "  The  defendant  is  pos- 
sessed of  lands  liable  to  levy  and  sale  on  execution." 


§10,11,12.]  EXECUTION PRIORITY    OF.  163 

ings,  suggestion,  and  the  costs  that  have  accrued  tliereon."  The 
ti-anscript  in  such  case,  as  in  all  others,  should  contain  the  return  of 
the  constable  to  the  execution.  The  suggestion  above  mentioned 
may  be  in  the  following  form,  and  should,  of  course,  be  entered  af- 
ter the  entry  of  the  return  to  the  execution: 

June  15,   1850.     It  is  suggested  to  me  that  said  defendant  is  pos- 
sessed of  lands  liable  to  levy,  and  sale  on  execution.(15) 


Sec.  XII.  —  OF  the  rights  of  the  plaintiff,  and  the  duties  op 

THE  CONSTABLE,  AVHEN  THERE  ARE  TWO  OR  MORE  JUDG- 
MENTS  OR  EXECUTIONS    AGAINST    THE  SAME  DEFENDANT. 


In  analogy  to  the  statute  regulating  judgments  and  executions 
from  the  court  of  common  pleas,  as  far  as  that  analogy  can  be  ap- 
plicable, it  is  believed  that  an  execution  issued  by  a  justice  does  not 
bind  the  goods  mitil  actual  levy.(16) 

If  two  executions  are  delivered  to  the  same  officer  on  the  same 
day,  no  preference  should  be  given  to  either  of  them,  and  both 
may  be  levied  upon  the  same  property,  and  the  money  made,  dis- 
tributed in  proportion  to  the  amount  of  the  several  executions;  in 
all  other  cases,  the  writ  first  delivered  should  be  first  satisfied  by 
levy. 

If  executions  are  delivered  to  different  constables  on  the  same  or 
different  days,  against  the  same  defendant,  the  execution  first  levied 
will  hold  the  property. (17) 

When  an  execution  obtains  a  right  and  priority  by  levy,  a  subse- 
quent or  other  execution  in  the  hands  of  another  officer,  cannot,  in 
general,  be  levied  by  him  upon  the  same  goods;  because  he  cannot 
take  them  from  the  }>ossession  of  the  officer. 

When  an  execution  is  delivered  to  I.  J.  on  one  day,  and  another 
execution  is  delivered  to  T.  P.,  another  constable,  on  a  subsequent 
day,  against  the  same  debtor,  and  T.  P.  levies  his  execution,  and 
thereby  gains  a  preference,  so  that  I,  J.  by  his  negligence,  is  not 

(w)  Stat.  521,587. 


(l-'j)  As  to  the  proceeding's  in  the  court  of  common  pleas  upon  the  sugTg'estion 
of  lands,  sec  Stat.  621,  §88,  89. 

(16)  I  am  not  aware  that  this  question  has  been  settled.  By  the  common  law  a 
fi.fa.  bound  g'oods  and  chattels  from  its  teste,  ftnd  if  the  judgment  debtor,  after 
the  execution  issued  :in<l  before  levy,  sold  them  to  a  bona  fide  purchaser,  for  a  val- 
uable consider.ition,  tliey  were  still  liable  to  be  taken  on  tlie  execution,  into  whose 
hands  soever  they  came.  Cro.  Eliz.  174;  Cro.  Car.  149;  7  T.  li.  21.  A  statute 
is  not,  in  g'eneral,  construed  liijeralty  against  the  common  law?  but  such  common 
law  as  this,  is  "contrary  to  the  general  understanding  of  the  community,  and  if 
adopted,  would  be  attended  vvilli  great  inconvenience  and  manifest  injustice." 

(17)  These  rules,  as  stated  above,  cannot  be  confidently  relied  on,  but  they 
contain  the  best  advice  I  am  able  to  give. 


1G4  EXECUTION MONKY  MADK.  [P/7.  1 ,   C//.  23, 

able  to  make  the  money,  he  \\\\\  be  liable  to  tlie  suit  of  tlic  plaintilV 
for  his  negligence;  but  tiic  sale  of  T.  P.  will  be  v;ilid  and  cannot  be 
avoided.* 

If  the  ofTicer  receives  two  executions  upon  ditlerent  daj's,  against 
the  same  defendant,  and  levies  and  sells  by  virtue  of  the  execution 
last  delivered,  the  sale  will  be  good,  and  the  property  will  vest  in 
purchasers;  but  the  constable  will  be  liable  to  the  party  whose  ex- 
ecution was  first  delivered.'' 

^yhen  an  execution  has  been  fraudulently  executed,  a  subsequent 
execution,  at  the  suit  of  another,  which  is  executed  afterwards,  shall 
stand  and  be  preferred;  and  the  fact  of  fraud  is  matter  of  incjuiry  by 
the  justice,  upon  a  trial  of  the  right  of  property.*^ 


Sec.    XIII. WHAT  MUST  BE  DONE  WITH   MONEY    COLI.ECTEn    ON    EXE- 
CUTION, AND  OTHERWISE. 


The  constable  must  pay  over  to  tlie  ])arty  entitled  thereto,  all 
moneys  received  by  him  on  execution,  upon  demand  made  by  such 
party^  or  by  his  agent  or  attorney,  duly  authorized;  and  in  all  other 
case's,  the  constable  collecting  money  on  execution,  must  pay  over 
the  same  to  the  justice  issuing  the  execution,  on  the  return  day 
thereof,  and  take  a  receipt  of  the  justice  therefor.^(18) 

if  a  justice  receive  money  in  his  official  capacity,  either  from  a 
constable  or  otherwise,  and  neglect  or  refuse  to  pay  over  the  same, 
when  demanded  at  his  office  or  place  of  residence,  by  the  person 
entitled  to  it  or  his  agent,  he  is  liable  to  the  action  of  the  party  in- 
jured thereby,  for  the  recovery  of  such  money,  together  with  inter- 
est and  ten  per  cent  penalty  thereon,  and  costs  of  suit.  A  justice 
of  the  peace  has  the  same  jurisdiction  of  this  action  as  of  other  civil 
suits,  if  the  recovery  does  not  exceed  one  hundred  dollars,® 

A  justice  has,  it  is  believed,  no  official  authority  to  receive  mo- 
ney on  a  judgment  while  an  execution  upon  it  is  in  the  hands  of  a 
constable;  but  if  he  receives  it  he  does  so  as  the  agent  of  the 
debtor,  and  not  in  his  official  capacity.^  So.  if  a  note  not  due  is 
left  with  him  to  collect,  and  sue  if  not  paid,  and  he  receives  the 
money  before  it  is  due^  he  acts  as  agent  of  the  parties,  merely,  and 
his  official  sureties  are  nol  liable  for  it.^  But  wiien  claims  that 
are  due  are  left  with  a  magistrate  to  collect,  and  the  debtors  pay 
them  before  suit,  he  must  be  considered  as  receiving  the  money  in 
his  official  capacity.  There  may,  to  be  sure,  he  cases  where  a  jus- 
tice is  employed  for  a  compensation  independent  of  his  ordinary 

Ca)  4  Cow.  Rep.  467,  468.  (d)  Stat.  530,  ?.113. 

fb)  1  L-l.Rayni.  251.    4  East,  423.     1  Salk.  (c)  Id.  52-1,  <S  101. 

320.  4  Cow.  468,469.  If?  Jolms.  Rep.  311.  (?)  Wri-rht's  Rep.  411 

fp)  1  VVils.  Rep.  M.  (U)  Id.  7.3.3 


(18)  As  to  proceedings  against  a  constable,  for  refusing  to  pay  over  money,  see 
Part  2,  Title  12. 


§12,13.]  EXECUTION MONEY  MADE.  165 

official  fees,  and  as  a  mere  agent  of  the  creditor  to  call  upon  and 
dun  debtors.  Such  an  agent,  thus  paid,  and  demanding  and  receiv- 
ing money,  is  not  acting  in  his  official  capacity. 

The  official  bond  of  the  justice  renders  his  sureties  liable  only 
for  money  received  by  him  in  his  official  capacity,  which  he  neglects 
and  refuses  to  pay  over.  For  such  misconduct,  and  such  alone,  are 
the  sureties  liable;  and  consequently,  when  a  justice  receives  mo- 
ney merely  as  the  agent  of  a  party,  and  neglects  and  refuses  to  pay 
it  over,  or  is  guilty  of  negligence  or  breach  of  duty,  in  any  other 
thing  besides  the  refusal  to  pay  over  money  received  in  his  official 
capacity,  the  sureties  cannot  be  made  responsible. 

An  action  on  tiie  official  bond  of  a  justice  can  only  be  brought  ia 
the  court  of  common  pleas  or  supreme  court;  a  justice  of  the  peace 
having  no  jurisdiction  over  such  an  action,' 

(i)  Stat,  162. 


CHAPTER  XXIV. 


OF  THE  SERVICE  AND  RETURN  OF  EXECUTIONS  AGAINST 
THE  GOODS  AND  BODY;  AND  OF  ESCAPES. 


SECTION  I.       OF  THK  DUTY  OF  THE  OFFICER  TO  SEEK  FOR  GOODS  AND  CHAT- 
TELS, 

n.      OF  THE  ARREST  AND  COMMITMENT THE  EFFECT  THEREOF 

WHEN  THE  DEFENDANT  MAY  BE  ENLARGED AND  FORMS  OF 

RETURNS, 
HI.      RIGHTS  AND  LIABILITIES  OF  THE  CONSTABLE,    AND  OF  PARTIES, 
WilEN  THE  DEFENDANT  ESCAPES. 


»SeC.    I. OF  THE  DUTY  OF  THE  OFFICER  TO  SEEK  FOR  GOODS  AND  CHAT- 
TELS. 

When  execution  is  issued  against  the  goods  and  body,  tlie  officer 
is  bound  in  the  first  place  to  ascertain  whether  the  defendant  has 
sufficient  goods  and  chattels,  liable  to  be  taken  on  execution,  to 
satisfy  the  judgment. 

If  the  officer  acts  in  goodfaitJi^  he  will  incur  no  responsibility  by 
omitting  to  take  the  body  of  the  defendant,  until  search  can  be  made 
for  property. 

When  goods  and  chattels,  subject  to  seizure  and  sufficient  to  sat- 
isfy the  execution,  might  have  been  found  by  reasonable  diligence, 
and  the  officer  takes  the  body,  he  will,  in  general,  be  liable  to  the 
plaintiff  for  a  false  return,  and  to  an  action  of  trespass  at  the  suit  of 
the  defendant.^  But  if,  after  diligent  inquiry,  no  property  can  be 
found,  the  officer  will  be  blameless,  even  though  there  were,  in  fact, 
sufficient  goods  and  chattels.'' 

The  powers  and  duties  of  a  constable,  in  making  a  levy,  where 
the  execution  is  against  the  goods  and  body,  is  the  same  as  where 
the  execution  is  against  the  goods  and  chattels  only.(l) 

If  the  constable  cannot  find  sufficient  goods  to  satisfy  the  whole 
amount  of  the  execution,  he  ought  not,  "(unless  the  plaintiff  other- 
w^ise  direct.)  to  make  a  levy,  but  should  arrest  the  defendant, 

(a)  4  Wend.  Rep.  039.  \>)  1  Conn.  Rep.  337. 


(1)  As  to  the  powers  and  duties  of  an  officer  to  levy,  see  preceding  chapter. 


[  Frt.  1 ,  Ch.  24,  §  1 , 2.]  EXECUTION  for  goods  and  body.  1 67 


Sec.  II, — of  the  arrest  and  commitment  —  the  effect  thereof — 

WHEN  the  defendant  MAT  BE  ENLARGilD AND   FORMS  OF 

RETURNS. 

The  arrest  on  an  execution  against  the  body,  may  be  made  at  the 
same  time,  in  the  same  manner,  and  in  the  same  place,  as  an  arrest 
upon  a  capias:  the  duty  of  the  officer  in  both  cases  is,  in  this  res- 
pect, the  same. (2) 

When  an  officer  has  civil  process,  whether  a  capias  or  execution, 
against  a  person  who  is  privileged  from  arrest,  he  may,  in  generaU 
arrest  the  defendant  v>ithout  being  liable  to  an  action  on  account 
thereof,  for  it  would  be  unreasonable  to  re(juire  an  officer  to  deter- 
mine, in  all  cases,  who  are,  or  who  arc  not  privilcged.'^O)  The 
only  persons  excepted  from  this  rule,  are,  insolvents  who  produce 
their  certificates,  members  of  the  Legislature  and  their  officers,  fe- 
males, and  ambassadors  of  a  foreign  state  and  their  servants.  If  a 
constable  should  arrest,  either  on  a  capias  or  execution,  any  of 
these  persons,  he  would  render  himself  liable  to  an  action  But 
other  persons  who  are  privileged  from  arrest,  may  be  taken  into 
custody  and  brought  before  the  justice,  who  must  immediately  dis- 
charge them  from  custody,  if  satisfied  that  they  are  privileged  from 
arrest;  or  the  constable  may,  if  he  please,  allow  such  persons  their 
privilege,  and  decline  to  arrest,  and  return  the  fact  on  his  writ,  that 
they  are  privileged  from  arrest;  but  if  it  should  turn  out  that  the 
officer  was  mistaken,  the  plaintiff  mny  sue  him  for  a  false  return. 

When  the  true  name  of  the  defendant  and  the  one  in  the  writ 
are  different,  or  the  two  do  not  sound  alike,  the  constable  should, 
before  he  makes  the  arrest,  see  that  the  name  in  the  execution  and 
judgment  are  alike;  for  if  the  mistake  is  in  the  execution  alone,  the 
constable  will  render  himself  liable  to  an  action,  by  arresting  the 
defendant.  But  if  the  defendant  is  misnamed  in  the  judgment  and 
execution,  the  constable  7?tusl  arrest  the  defendant:  it  is  too  late 
for  the  defendant  to  object  to  the  misnomer,  after  trial  and  judg- 
ment.^ 

The  constable  must  take  the  defendant  to  the  jail  of  the  county, 
and  commit  him  to  the  custody  of  the  jailor,  leaving  with  the  latter 
a  certified  copy  of  the  writ''  and  return. 

If  the  sheriff  is  not  at  the  jail,  nor  any  keeper  or  other  person 
to  receive  and  confine  prisoners,  the  constable,  after  waiting  a  rea- 
sonable time,  has  done  his  duty;  and  if  the  defendant  then  goes 
at  large,  the  sherifi".  and  not  the  constable,  will  be  liable  for  the 
escape. 5 

An  arrest  on  an  execution  is  a  discharge  and  satisfaction  of  the 

!  (c)  6  Co.  Rep.  64;  Doug.  677.  652.  (e)  Stat.  513,  $74. 

(d)  Stra.  1218.     Sec  Prt.  1,  Cli.  vii.  $1.  (e)  5  Mass.  Rep.  310. 


(.3)   See,  in  rclalloii  to  arrest  on  :i  capias,  j).  34. 

(3)   A  justice,  liowcver,  who  issues  a  capias  or  execution  for  the   body,  aj^-ainst 
a  i)erbon  wlioui  lie  knows  to  be  privileged,  n>ay  be  liable  to  uii  action  lor  so  doing-. 


IG8  EXECUTION  FOR  GOODS  AND  BODi'.         [Pl^t.   1-   C/l.  24. 

debt.'*  No  execution  can  afterwards  be  issued  on  the  judgment, 
and  if  the  plaintiff  discharges  the  defendant  from  custody,  he  cannot 
be  retaken:  the  judgment  is  satisfied,  and  the  defendant  cannot  be 
again  sued  for  the  same  debt,  except  upon  a  new  promise  or  under- 
taking to  pay  it.  When,  iiowever,  the  defendant  is  discharged  b}^ 
his  own  act,  (as  by  obtaining  a  certificate  under  the  insolvent  laws,' 
or  by  escaping  from  custody,)  the  judgment  will  remain  unsatisfied 
and  ojierative.  So,  if  the  defendant  obtains  the  ])rivilege  of  the 
prison  bounds,  execution  may  issue  at  any  time  afterwards  against 
his  goods  and  chattels.'' 

When  the  i)laintiff  consents  to  discharo-e  one  of  several  defend- 

•      •  •  1 

ants,  taken  on  a  jomt  execution,  he  cannot  afterwards  retake  him, 
or  take  any  of  the  others:  the  judgment  is  satisfied.'  But  if  one  of 
them  be  discharged  by  his  own  act,  as  above  mentioned,  this  will 
not  discharge  the  others.™ 

A  person  cannot  give  bond  and  have  the  liberty  of  the  prison 
until  he  is  actually  imprisoned  within  the  four  walls  of  the  jail." 
The  constable  would,  therefore,  be  liiible  for  an  escape,  if  he  re- 
leased the  body  of  the  dci'endant  upon  his  giving  such  bond:  the 
defendant  can  only  be  released  after  he  is  in  jail.  A  defendant, 
however,  in  custody,  either  on  a  capias  or  on  an  execution,  in  a  civil 
case,  must,  if  he  request  it,  be  taken  by  the  constable  before  the 
commissioner  of  insolvents.  If  the  commissioner  give  the  defend- 
ant a  certificate  for  his  discharge,  the  constable  must  discharge  the 
defendant  from  custody,  and  return  with  the  writ  a  copy  of  the  cer- 
tificate.** 

A  return  that  the  defendant  is  sick  and  cannot  be  removed  with- 
out danger  to  his  life,  and  that  he  continued  so  at  the  return  of  the 
writ,  is  a  good  return.!'  So,  it  is  probabk'  that  a  return  that  the  de- 
fendant was  rescued  out  of  the  custody  of  the  officer,i  or  that  the  de- 
fendant overpowered  the  officer  and  rescued  himself,  will,  when 
tme,  be  a  good  return,(4)  and  exonerate  the  officer  from  all  liability. 

FORMS  or  RETURNS. (5) 

"When  neither  goods  nor  body  can  be  found. 
The  within  named  C D hath  not  any  goods  or  chattels 

(h)  It  seems  that  even  a  court  of  equity  will  (q)  In  England,  an  officer,  on  mesne  process, 

not  lend  assistance.     13  Ves.  jun.  193.  may  call  the  power  of  the  country  to  his  aid  to 

(i)  5  East.  147.  prevent  a  rescue;  and  on  an  execution  lie  shall 

(k)  Stat.  486,  $39-  rail    the   power  of  the   country    to  prevent  a 

(1)  6  T.  R.  525;  2  East.  243;  4  Eng.  C.  L.  Rep.  rescue — hence,  if  a  defendant  is  rescued  from 

418;  7  T.  R.  420.  custody  on  mesne  process,  tlie  officer  is  excus- 

(m)  5  East.  147.  cd;  but  it  is  otherwise  on   final  process.     Cro. 

(n)  2  Ohio  Rep.  284.  Jac.  419;  1  Stra.  432;  Cro.  Eliz.  781;  Dy.  24, 

(o)  Stat.  441,  $0;  445,  $22-  (a).     We  have  no  statute  like  that  of  West.  2, 

(p)  6  Eng.  C.  L.  Rep.  425.  which  compels  the   officer  to  raise  the   posse 

comitatus. 

(4)  Rescuers  are  liable  to  answer  in  daniag'es  lo  Uie  plaintiff  f&t  all  the  conse- 
quences of  their  acts.  Cro.  Jac.  241;  Cro.  Car.  109.  They  may  also  be  pun- 
ished by  fine  and  iMi|)risonnicnt. 

(5)  For  the  forms  of  returns  when  property  is  taken  instead  of  the  body,  see 
page  158. 


§2.]  EXECUTION  FOR  GOODS  AND  BODY.  169 

whereof  I  can  make  any  part  of  the  amount  of  this  execution;  nor 
is  he  to  be  found  in  my  baihwick. 

I J ,  Constable. 

When  the  defendant  is  taken. 

June  1,  1846.  The  within  named  C D hath  not  suffi- 
cient goods  and  chattels  whereof  to  make  the  amount  of  this  exe- 
cution, and  for  want  thereof,  I  took  his  body  and  committed  the 

same  to  the  custody  of  the  keeper  of  the  jail  of county,  with 

whom  I  left  a  certified  copy  of  this  writ  and  return. 

1 J ,  Constable. 

Fees, , 

JVheJi  the  defendant  is  discharged  by  the  Commissioner  of  Insolvents. 

June  1,  1846.  The  within  named  C D hath  not  suffi- 
cient goods  and  chattels  whereof  to  make  the  amount  of  this  exe- 
cution, and  for  want  thereof,  I  took  his  body;  thereupon,  at  his  re- 
quest, I  took  him  before  the  commissioner  of  insolvents  of 

county,  and  the  said  C D then  produced  to  me  the  certifi- 
cate of  said  commissioner,  of  which  the  following  is  a  copy.  [Here 
copy  the  certificate  of  the  commissioner. '\     Whereupon,  I  discharged 

said  C D from  custody. 

I J ,  Constable. 

Fees,  

When  the  defendant  is  sick. 

The  within  named  C D hath  not  sufficient  goods  or 

chattels  whereof  to  make  the  amount  of  this  execution,  and  for 
want  thereof,  [June  1,  1846.)  I  proceeded  to  the  place  of  abode  of 

the  within  named  C D ,  where  he  then  was,  to  arrest  him, 

and  then  there  found  him  so  weak  and  sick,  and  he  still  remains  so 
weak  and  sick,  that  without  great  peril  and  danger  of  his  life,  I 

cannot  have  his  body  before  the  within  named  G H ,  j.  p. 

as  commanded. 

I J ,  Constable. 

When  the  defendant  is  privileged  from  arrest. 

The  within  named  C D hath  not  any  goods  or  chattels 

whereof  I  can  make  any  part  of  the  amount  of  this  execution;  and 

I  certify  that  the  within  named  C D ,  at  the  time  of  the 

delivery  of  this  writ  to  me,  and  from  thence  continually  hitherto, 
hath  been,  and  still  is,  a  messenger  of  the  General  Assembly  of  the 
State  of  Ohio,  and  during  all  that  time  the  said  General  Assenjbly 
hath  been  in  session,  and  the  said  C D serving  as  said  mes- 
senger: Therefore,  I  cannot  liave  the  body  of  the  said  C D 

before  the  within  named  G H ,  j.  p.  as  I  am  commanded. 

I J ,  Constable. 

22 


170  EXECUTION  FOR  GOODS  AND  BODY.  [Pft.  1,   C/l.  24, 


Sec.    III. RIGHTS  AND    LIABILITIES    OF    THE    CONSTABLE    AND    PARTIES 

AVIIEN  THE  DEFENDANT  ESCAPES. 

Escapes  are  of  two  kinds:  voluntary^  when  the  defendant,  after 
the  arrest,  goes  at  large  by  the  consent  of  the  officer;  and  negli- 
gent^ when  the  defendant,  after  the  arrest,  escapes  without  the  con- 
sent of  tlie  olficer. 

What  will  be  here  said,  relates  to  an  escape  when  a  person  is 
taken  into  custody  on  an  execution.(6) 

Of  voluntary  escapes. 

If  the  officer  allows  the  defendant  to  go  at  large,  even  for  the 
shortest  time,  without  the  consent  of  the  plaintiff,  it  is  a  voluntary 
escape.  The  officer,  in  such  case,  will  be  liable  to  the  })laintiff, 
and  retaking  the  defendant  will  not  change  the  right  of  the  plaintill" 
to  sue  for  the  escape.^ 

After  a  voluntary  escape,  the  officer  cannot  retake  or  detain  the 
defendant,  but  will  be  liable,  if  he  do  so,  to  an  action  for  false  im- 
])risonrnent.'"  When  the  defendant  escapes  without  the  consent  of 
the  plaintiff,  he  may  have  the  defendant  or  his  property  taken  on  a 
fresh  execution.^  If  the  defendant  voluntarily  return,  and  the  offi- 
cer detain  the  defendant  by  the  direction  of  tJie  plaintiffs  this  would 
excuse  the  officer;  but  a  voluntary  return  and  detention  by  the  offi- 
cer, without  the  consent  of  the  plaintiff,  will  not.' 

In  general,  when  there  is  a  voluntary  escape,  the  officer  is  liable 
to  the  plaintiff  for  the  whole  amount  of  the  judgment. 

The  officer  has  no  right  to  judge  of  the  propriety  of  imprisoning 
persons  committed  to  his  charge  on  execution,  or  to  permit  debtors 
to  go  at  large,  under  the  supposition  that  no  good  would  result  from 
their  imprisonment.  In  general,  therefore,  when  there  is  a  volun- 
tary escape,  proof  by  the  officer,  of  the  total  inability  of  the  delator 
to  pay  the  judgment,  cannot  be  received  to  reduce  the  damages  in 
the  action  for  the  escape.'^  It  is,  however,  a  good  defence  to  the 
action,  that  the  defendant  was  privileged  from  arrest.^""  So,  it 
would  be  a  good  defence,  that  tlie  plaintiff  consented  to  the  release 
of  the  debtor  from  custody;  but  when  the  judgment  is  in  a  suit 
brought  for  a  fine  or  penalty,  part  only  of  which  goes  to  the  plain- 
tiff, he  has  no  authority  to  consent  to  the  discharge  of  the  defendant 
from  arrest. 

When  a  constable  has  been  compelled  to  pay  the  judgment,  on 
account  of  a  voluntary  escape,  he  has  no  remedy  against  the  defen- 
dant,* even  if  the  defendant  promised  or  entered  into  bond  to  in- 

(q)  2  Johns.  Ca.  3.  (t)  1  Wend.  Rnp.  398;  15  Johns.  Rep.  256. 

(r)  5  T.  R.  25;  15  Johns.  Rep.  256.  (v)  6  Oliio  Rep.  13. 

(s)  8  Johns.  Rep.  361;  1  Salk.  272;  5  Wend.  (w)  1 1  Jolins.  Rep.  474. 

240;  Cro.  Car.  255;  Cro.  Eliz.  555.  (a)  11  Mass.  11;  Peak's  N.  P.  144,  n.  (a). 


(6)  As  to  an  escape  on  a  cipias,  sec  pages  36,  37. 


§3.]  EXECUTION  FOR  GOODS  AND  BODY,  ITl 

demnify  him  therefor.''  A  contract  to  indemnify  an  officer  for  an 
illegal  act,  is  void.*"  But  a  bond  to  save  a  man  harmless  from  the 
payment  of  all  damages  on  account  of  an  unlawful  act  already  done 
by  him,  is  not  void,'^  unless  such  bond  formed  a  part  of  the  induce- 
ment to  do  the  vmlawful  act. 

If  the  plaintiff  give  the  defendant,  who  is  in  custody  on  an  exe- 
cution, leave  to  go  at  large,  the  judgment  will  be  thereby  discharg- 
ed, and  the  plaintiff  can  neither  issue  a  new  execution  nor  maintain 
an  action  for  the  escape,  against  the  officer.(7)  He  must  seek  his 
remedy  upon  the  new  contract,  if  any,  which  he  has  entered  into 
with  the  defendant. 


Of  a  negligent  escape.{S) 

In  case  of  a  negligent  escape  from  execution,  the  officer  may, 
on  fresh  pursuit,(9)  retake  the  defendant,  and  if  so  retaken  by  fresh 
pursuit,  or  if  the  defendant  voluntarily  return  into  custody  before 
an  action  has  been  commenced  against  the  officer,  it  will  be  a  good 
defence,  if  pleaded  to  the  action  for  the  escape.''  But  if,  before  the 
defendant  has  been  retaken,  the  plaintiff  shall  have  commenced  his 
action  against  the  officer,  the  latter  will  be  still  liable'^  to  the  plain- 
tiff for  nominal  (one  cent)  damages. 

The  damages  which  may  be  recovered  against  the  officer  for  a 

(b)  Com.  on  Con.  57;  Yelv.  197.  (d)  2  Johns.  Ca.  205. 

(c)  14  Johns.  Eep.  381;  Caine's  Rep.  460;  Holt.  223.  (e)  Cro.  Jac.  657;  3  Co.  52;  Stra.  873. 


(7)  2  East,  243;  7  T.  R.  420;  11  Jotins.  Rep.  476.  The  consent  or  agreement 
of  the  pUiintifFto  an  escape,  after  it  shall  have  happened,  without  consideration, 
will  not  discharge  the  officer;  but  it  is  otherwise  when  the  agreement  is  upon  a 
good  consideration.     7  Cowen's  Rep.  274. 

(8)  The  return  upon  a  capias  ad  respondendum,  of  a  rescue,  entirely  exoner- 
ates the  officer  from  all  liability.  See  page  36.  Whether  such  a  return  upon  an 
execution  will  exonerate  him,  I  cannot  with  certainly  advise.  But  it  clearly 
would  not  if  the  officer  were  guilty  of  the  slightest  neglect  or  want  of  exertion 
to  prevent  an  escape.  The  form  of  a  return  of  rescue  upon  an  execution  will, 
however,  be  here  given,  and  the  constable  can  readily  alter  it  according  to  the 
facts,  so  as  to  apply  to  a  case  of  rescue  upon  a  capias. 

The  within  named  C D hath  not  sufficient  goods  and  chattels  whereof 

I  can  make  the  amount  of  this  execution,  and  for  want  thereof,   by  virtue  of  this 

writ,  on  the  day  of ,    18 — ,   at  the   township  of ,  in  the  county  of 

■ ,  and  within  my  bailiwick,   I  took  and  arrested  the  said  C D ,  and 

safely  kept  him  in  my  custody  to  commit  to  the  jail  of  the  said  county;  and  while 
I  was,  on  the  day  and  year,  and  at  the  place  aforesaid,  (brlhwith  after  said  arrest, 

proceeding  to  commit  the  said  C 1) to  said  jail,  .1 K ,  and  divers 

other    persons   to    me   unknown,    widi   force    and    arms   assaulted  me,    and    then 

and  there  the  said  C D out  of  my  custody  rescued,   and  tiie  said  C 

T) then  and  thei'e  with  force  and  ai-ms  rescued  himself  and  escaped  nut  of  my 

custody;  and  afterwards  the  said  C 1) is  not  to  be  found  in  my  bailiwick. 

1 J ,  Constable. 

(9)  Fresh,  pursuit  means  pursuit  made  a'?  soon  as  tlie  officer  has  notice  of  the 
escape.      As  to  rescuers,  and  the  liability  of  the  ollicer  liierefor,  sec  page  168. 


*72  EXECUTION  FOR  GOODS  AND  BODT.     [Prt.  1,  Ck.  24,  §3.] 

negligent  escape,  depend  upon  the  circumstances  of  each  particu- 
lar case.  In  general,  the  phvintill'is  entitled  to  recover  the  amount 
of  the  execution.  If  the  olliccr  c;ni  show  that  the  plaintitf  has  not 
sustained  damages  to  that  amount,  the  judgment  against  him  will 
be  reduced  accordingly.  Proof  of  the  total  inability  of  the  judg- 
ment debtor  to  pay,  would,  of  course,  lessen  the  damages.^ 

The  judgment  debtor  is  liable  to  the  officer  for  whatever  dam- 
ages the  latter  may  sustain  in  consequence  of  the  escape.^ 

(g)  6  Oliio  Rep.  13.  (^h)  H  Mass.  Rep.  U. 


CHAPTER  XXV. 


OF  TRIAL  OF   THE  RIGHT  OF  PROPERTY  TAKEN  ON 
EXECUTION. 


A  constable  is  placed  in  an  awkward  situation,  under  the  rule  of 
law,  that  if  goods  and  chattels  of  the  defendant  are  pointed  out  to 
him,  and  he  does  not  levy  upon  them,  he  will  be  liable  to  the  plain- 
tiff for  a  false  return;  and  if  the  goods  and  chattels  thus  pointed  out 
are  not  the  property  of  the  defendant,  and  the  constable  levies  upon 
them,  the  owner  may  sue  him  as  a  trespasser:  the  officer,  in  either 
event,  acts  at  his  peril. 

The  summary  mode  of  proceeding  under  the  statute  to  try  the 
right  of  a  claimant  to  goods  taken  on  execution,  has  been  adopted 
merely  for  the  purpose  of  so  far  settling  the  question  between  the 
claimant  and  constable  that  the  latter  will  not  render  himself  liable 
afterwards  to  an  action  of  trespass,  for  seizing  and  selling  the  pro- 
perty.'^ 

The  claimant,  if  he  chooses,  may  resort  to  his  action  of  trespass 
in  the  first  instance,  instead  of  preferring  his  claim  under  the  sta- 
tute. 

If  the  claimant  proceed  under  the  statute,  he  must  give  three 
days'  notice, (1)  in  writing,  to  the  plaintiff'  or  his  agent,  of  the  time 
and  place  of  the  trial  of  his  right  to  the  property.  If  neither  the 
plaintiff  nor  his  agent  be  in  the  county,  the  notice  may  be  served 
by  leaving  a  copy  at  the  usual  place  of  abode  of  the  plaintiff;  but 
if  the  plaintiff  have  no  place  of  abode  within  the  county,  and  nei- 
their  he  nor  his  agent  be  therein,  then  no  notice  will  be  necessary.'' 

(a)  8  Ohio  Rep.  370.  Stat.  523,  596. 


(1)  Form  of  notice: — 


A B ) 

vs.  V     On  execution  issued  by  G II*. 

C D .  3 


The  said  A 1? will  take  notice  that  I  claim  the  following"  property, 

whicii  has  been  levied  upon,  in  the  above  case,   as  the  property  of  C 1) , 

to  wit:   [here  describe  the  properly  claimed.]     A  trial   will  be  had   of  my  rig-ht  to 

said  property,  on  the day  of' ,  in  the  year ,  at o'clock,  P.  M., 

\or  A.  M.  OH  the  case  may  be,]  before  G H ,  a  justice  of  the  peace  of 

township,  county,  ut  liis  office  therein. 

^Signed,]  E r . 

Dated, ,  18—. 


174  EXECUTION CLAIMANT.  [Pft.   1, 

The  trial  must  take  place  one  day  before  the  time  advertised  for 
the  sale,  and  conse(iucntly  the  claim  must  be  made,  by  notice  of  the 
trial  served  on  the  plaintilf  or  his  agent,  at  least  four  days  before 
the  day  of  sale.  Thus,  if  the  5tii  of  May  has  been  fixed  upon  as 
the  day  of  sale,  the  notice  may  be  served  on  the  1st  of  May  for  a 
trial  on  the  4th. 

The  statute  further  provides,  that,  "if  on  the  trial  the  justice 
shall  be  satisfied,  from  the  proof,  that  the  property,  or  any  part 
thereof,  belongs  to  the  claimant  or  claimants,  he  shall  render  judg- 
ment and  issue  execution  against  the  party  in  whose  favor  such  ex- 
ecution issued,  for  the  costs,  and  moreover  give  a  written  order  to 
the  constable  who  levied  on  or  may  be  charged  with  the  duty  of 
selling  such  property,  directing  him  to  restore  the  same,  or  so  mucii 
thereof  as  may  have  been  found  to  belong  to  such  claimant  or 
claimants,"''(2) 

But  if  the  claimant  or  claimants  fail  to  establish  his  or  their  right 
to  such  property  or  to  any  part  thereof,  the  justice  shall  render 
judgment  against  such  claimant  or  claimants  for  the  costs  that  have 
accrued  on  account  of  such  trial,  and  issue  execution  therefor;  and 
the  constable  shall  not  be  liable  to  the  claimant  or  claimants,  for 
the  property  so  taken.'^ 

Neither  J;he  claimant  nor  plaintiff  to  the  judgment  can  be  a  wit- 
ness on  the  trial  of  the  right  of  property.  The  judgment  debtor  is 
interested  in  retaining  the  levy,  which  is  a  satisfaction  of  the  judg- 
ment to  the  value  of  the  property,  and  hence  it  is  believed,  the 
plaintiff  to  the  judgment  cannot  call  him  as  a  witness  if  the  claim- 
ant object,^  though  the  claimant  may  call  him  even  if  the  plaintiff 
to  the  judgment  object,  for  his  interest  is  against  the  claimant.  In 
many  cases,  however,  and  especially  where  there  is  any  indication 
of  fraud  between  the  claimant  and  debtor,  little  or  no  confidence 
could  be  placed  in  the  testimony  of  the  latter. 

The  rights  of  the  claimant  are  so  far  changed  by  the  decision  of 
the  justice,  that  the  constable  cannot  be  sued  for  pursuing  the 
course  pointed  out  for  him  by  that  decision.  But  when  the  claim- 
ant is,  in  fact,  the  owner  of  the  goods,  and  the  justice  decides 
against  him,  he  will  have  the  same  right  to  sue  the  purchaser  on 
the  execution,  or  other  person  who  has  possession  of  the  goods, 
after  demand  made,  as  if  no  trial  had  taken  place.  An  appeal  is 
not,  therefore,  allowed  from  the  decision  of  the  justice. 

(b)  Stat.  623,  $97.  (d)  See  2  N.  R.  331;  4  Taunt.  20,  per  Law- 

(c)  Id.  524,  $98.  RENCE,  J. 

(2)  Form  of  an  order  for  the  restoration  of  property  to  a  claimant. 

A B ,  -^ 

vs.  V      On  Execul'ion. 

To  I J ,   Constable  of Township. 

You  are  hereby  ordered  to  restore  to  E F {here  name  the  articles  to  he 

delivered  up, 1  taken  by  you  on  execution  in  the  above  case;  he  being-  the  owner, 
and  the  same  having-  been,  on  trial,  adjiulg-ed  to  him  by  me. 

G H ,  J.  p.  of Township. 

June  1,  1846. 


Ch   25.]  EXECUTION CLAIMANT.  175 

When  the  property  is  found  by  the  justice  to  be  in  the  claimant, 
the  constable  may,  and  in  many  cases  he  ought,  if  the  plaintiti' will 
indemnify  him  for  so  doing,  (but  not  otherwise,)  disregard  the  order 
of  the  justice  in  relation  to  the  right  of  the  claimant,  and  proceed 
to  sell  the  property,  as  in  other  cases.^(3) 

If  the  constable  sell,  he  will  be  liable  to  the  suit  of  the  claimant, 
and  in  that  suit  the  constable  may  contest  the  ownership  of  the 
goods,  notwithstanding  the  judgment  and  order  of  the  justice. 


FORM  OF  DOCKET  ENTRY  ON  TRIAL  OF  THE   RIGHT  OF  PROPERTY. 

K L ,  {claimant^  ^ 

vs.  > 

B ,  (the  judgment  cr editor. y 


Claim  by  plaintiff  of  right  of  property  levied  upon  by  execution 

in  favor  of  said  A B against  C D ,  and  in  the 

hands  of  I J ,  constable,  advertised  to  be  sold  on  the 

day  of ,  18 — . 

June  5,  1850,  2  o'clock.^  P.  M.  The  parties  appeared;  the  said 
K L ,  the  claimant,  produced  the  notice  which  is  as  fol- 
lows: [Jieix  copy  the  notice.^  I  do  find  that  said  notice  was  duly 
served  on  said  A B ,  on  the day  of ,  1 8 — . 

(e)  See  8  Cow.  Rep.  65.      12  Eng.  C.  L.  Rep.  347. 


(3)  Form  of  a  bond  to  indemnify  the  constable  for  selling  goods: 

Know  all  men  by  these  presents.  That  we,  A B ,  and  J F , 

are  held  and  firmly  bound  unto  I J ,  in  the  sum  of  five  hundred  dollars; 

for  the  payment  of  which  we  hereby  jointly  and  severally  bind  ourselves.  Sealed 
with  our  seals,  and  dated  this d:iy  of ,  A.  D.  18 — . 

Whereas,   the  above  named  I J ,  as  constable  of township,  in 

county,  by  virtue  of  an  execution  in  his  hands,  issued  in   the  suit  of  A 

B against  C D ,  by  G H ,  a  justice  of  the  peace  in  and  for 

said  township  and  county,  on  the day  of ,  in  the  year  18 — ,  to  make 

of  the  goods  and  chattels  of  C D the  sum  of  [here  state  the  amount  of  the 

judgment  and  costs,]  hath  seized  divers  goods  and  chattels  as  the  property  of  the 
said  C D ,  which  are  claimed  by  K L ,  who  procured  sucli  pro- 
ceedings to  be  duly  had  under  the  statute  relating  to  the  trial  of  the  right  of  pro- 
perty taken  on  execution,  tliat  said  I J was  by  said  G H ,  as  said 

justice,  duly  ordered  to   restore  said  goods  to  said  K L — • — :  and  whereas, 

said  A B ,  notwithstanding  the  premises,  has  requested  said  I J 

to  proceed  and  sell  said  goods  and  cliattels  under  said  execution,  as  the  property 
of  said  C D ,  wliich  said  I J has  agreed  to  do  upon  being  in- 
demnified: 

Now,  the  condition  of  tiie  above  obligation  is  such,  that  if  said  A B 

and  J F shall  save  harmless  and  keep  indemnified  the  said  I J 

from  all  losses,  costs,  attorney  and  counsel  fees,  damages  and  expenses  which  he 
may  sustain,  pay  or  be  but  unto,  for  seizing  or  selling  said  goods  and  chattels,  or 

paying  the  said  A B t!ie  money  arising  from  their  sale,  or  for  any  otiier 

act  or  matter  relating  thereto,  or  to  the  execution  of  said  writ,  then  the  above  ob- 
ligation to  be  void;  otherwise  to  remain  in  full  force. 

A B ,   (Seal.) 

J y ,   (Seal.) 


176  EXECUTION CLAIMANT,  [Pr^  1 ,   C//.  25.] 

Thereupon  trial  was  had,  [and  I  do  find  that  the  following  proper- 
ty, in  said  notice  referred  to,  belongs  to  said  claimant,  to  wit:  One 
coiv^  SfC.  It  is  therefore  considered  by  me,  that  said  claimant  reco- 
ver of  said  A B the  costs  herein,  taxed  at dollars 

cents.     Order  issued  and  delivered  to  said  constable  for  the 

restoration  of  said  property  last  mentioned.]  If  no  part  of  the  pro- 
perty be  found  in  the  cJainiftnt^  then  in  place  of  the  mattrr  in  brackets^ 
beginning  at  '•'■and  I  do  Jind^  <i^T."  say:  and  the  said  claimant  failed 
to  establish  his  right  to  any  part  of  said  property.     It  is  therefore 

considered  by  me,  that  said  A B recover  of  said  claimant 

the  costs  herein,  taxed  at dollars cents. 


CHAPTER  XXVI. 


OF   TRANSCRIPTS;  AND  OF   THE  DOCKET,  &c.,  OF   A 
JUSTICE  WHOSE  OFFICE  IS  VACANT. 


SECTION  I.         WHO  IS  ENTITLED  TO  A  TRANSCRIPT,  AND  BY  WHOM  THE  SAME 
MAY  BE  CERTIFIED, 

II.  OF  THE  DOCKET  &C.,  OF  A  JUSTICE  WHOSE  OFFICE  IS  VACANT, 

BY  DEATH   OR    OTHERWISE PROCEEDINGS    THEREON,    AND 

UPON  TRANSCRITS  THEREFROM. 

III.  OF  PROCEEDINGS  UPON  OTHER  TRANSCRIPTS. 

IV.  FORMS  OF  CERTIFICATES  TO  AUTHENTICATE  TRANSCRIPTS, 

V.  FORM  OF  SCIRE  FACIAS  ISSUED  UPON  THE   TRANSCRIPT  OR  DOC- 

KET OF  ANOTHER  JUSTICE. 

VI.  HOW  THE  SCIRE  FACIAS  MUST  BE  SERVED. 

VII.  FORM  OF  DOCKET  ENTRY  IN  PROCEEDINGS  BY  SCIRE  FACIAS. 


Skc,  I. WHO  IS  ENTITLED  TO  A  TRANSCRIPT,  AND  BY  WHOM  THE    SAME 

MAY  BE  CERTIFIED. 

The  statute  provides  that  justices  of  the  peace  shall  furnish,  if 
requested,  to  either  party  to  a  suit,  a  certified  copy  of  his  proceed- 
ings,* Any  person  interested  in  the  judgment  would,  it  is  believed, 
be  entitled  to  a  certified  copy. 

Transcripts  certified  by  a  justice,  of  proceedings  had  before  him 
during  his  continuance  in  office,  are  evidence  in  courts  of  justice, 
when  certified  by  him  after  the  expiration  of  his  term  of  office.'' 
So,  a  justice  having  possession  of  the  docket  of  an  absent  justice, 
may  make  out  and  certify  transcripts  therefrom,  in  like  manner  as 
from  his  own  docket.*^  Whenever  a  transcript  would  be  evidence, 
the  docket  itself,  if  produced,  and  proved  to  be  such,  would  also 
be  evidence.  A  justice  ought  not,  however,  to  take  his  docket  from 
his  office. 

(a)  Btat.  506,  $3.  (c)  Id.  507,  «9. 

(b)  Id.  507,  $5. 

23 


178  TRANSCRIPTS,   &,C., PJtOCKEIUNGS  ON.     [Pr/.   1,  Cfi.  26, 

Sec.  II. OF  THE  DOCKET,  &,C.,  OP  A  JUSTICE  WHOSE  OFFICE  IS  VACANT, 

BY    DEATH    OK   OTHERWISE PROCEEDINGS    THEREON,  AND 

UPON  TRANSCRIPTS  THEREFROM. 

The  Statute  provides,  that  in  all  cases  \vhcrc  the  office  of  a  jus- 
tice of  the  peace  in  any  township  shall  Ijecoine  vacant  in  any  man- 
ner, except  by  death,  the  docket  of  eveiy  such  justice,  or  a  tran- 
script of  all  unfinished  business  in  the  sanfe,  shall  be  duly  certified 
by  sucii  justice,  (or  in  case  of  death,  by  his  executors  or  adminis- 
trators,) and  delivered  to  the  successor  of  such  justice  or  some  otiier 
justice  in  said  township,  on  demand,  together  with  all  laws,  the  pro- 
perty of  the  State,  that  such  justice  may  have  in  his  possession  at 
the  time  of  the  vacancy."^  And  every  justice  of  the  peace  receiv- 
ing such  docket,  or  transcript,  must,  on  demand  of  the  j^laintiU'or 
his  agent,  proceed  to  issue  a  scire  facias  on  any  judgment  entered 
on  such  docket,  or  transcript;  and  on  such  scire  facias  ))eing  retiu'n- 
ed  ''served,"  and  no  good  cause  being  shown  by  the  defendant  or 
defendants  in  such  scire  facias,  or  when  the  scire  facias  may  be  re- 
turned "not  found,"  the  justice  must  enter  judgment  against  the 
defendant  or  defendants  named  therein,  and  proceed  to  issue  execu- 
tion, as  in  other  cases.® 

When  a  justice  has  removed  from  the  county  in  which  he  was 
elected,  and  a  person  is  entitled  to  have  execution  on  a  judgment 
rendered  by  him,  such  person  may  make  oath  or  affirmation  of  the 
fact,  before  another  justice  of  the  same  township,  who  will  be  there- 
by authorized  to  demand,  receive,  and  retain  the  docket  of  the  ab- 
sent justice,  and  may  issue  wa'its  of  scire  facias  upon  any  judgment 
entered  thereon,  and  proceed  to  execution  in  the  same  manner  as 
if  the  docket  or  a  transcript  thereof  had  been  duly  certified  by  the 
absent  justice. ^ 

An  aqtion  of  replevin  may  be  brought  by  the  justice  demanding 
the  docket,  in  the  court  of  common  pleas,  after  a  refusal  to  deliver 
it.  When  the  term  of  office  of  a  justice  expires,  and  he  leaves  the 
county  without  certifying  his  docket  or  transcript  therefrom,  the 
docket  itself  may  be  received  in  evidence  in  like  manner  as  a  tran ' 
script  duly  certified.^ 

A  justice  who  retains  the  docket  of  another  is  accountable,  and 
may  be  proceeded  against,  in  liis  official  capacity,  by  the  latter,  or 
his  representatives,  for  all  fees  due  on  the  docket,  when  collected.' 


Sec.    III. OP  PROCEEDINGS  UPON  OTHER   TRANSCRIPTS. 

The  statute  provides,  that  in  all  cases  where  a  transcript  of  a 
judgment  and  proceedings  of  a  justice  shall  be  duly  certified  and 
signed,  by  the  justice  rendering  the  judgment,  or  by  some  other  com- 
petent person,  and  delivered  to  another  justice  of  the  peace,  for  the 

(d)  Stat.  506,  $4,  fli)  Wriiilit's  Rep.  432. 

(e)  Id.  507,  $6.  (i)  Stat.  507,  $8. 
(g)  Id.  507,  $7. 


§2,3,4.]  TRANSCRIPTS,  ETC., PROCEEDINCS  ON.  ItD 

purpose  of  having  the  same  carried  into  execution,  it  shall  be  the 
duty  of  the  justice  receiving  such  transcript,  to  enter  the  same  on  his 
docket,  and  thereupon  to  issue,  at  the  request  of  the  party  in  whose 
favor  such  judgment  was  rendered,  or  his  agent,  either  a  writ  of  ca- 
pias or  a  writ  of  scire  facias  against  the  judgment  debtor;  by  M^hich 
scire  facias  such  debtor  shall  be  recjuired  to  appear  and  show  cause, 
if  any  he  can  show,  why  execution  should  not  issue  against  him  for 
the  amount  of  the  judgment  and  costs,  or  so  much  thereof  as  remains 
due  and  unpaid,  as  stated  in  such  transcript,'' 

When  such  writ  of  capias  shall  be  returned  executed,  or  such 
scire  facias  shall  be  served  and  returned  in  the  manner  a  summons 
is  required  to  be  served  and  returned,  and  it  shall  appear  to  the  jus- 
tice that  any  part  of  the  judgment  remains  due  and  unpaid,  and  no 
cause  shown  to  the  contrary,  he  must  render  judgment  for  the  sum 
so  remaining  due  and  unpaid,  and  for  the  costs  that  have  accrued, 
and  issue  execution  therefor,^ 

It  is  proper  to  state  here  as  a  general  rule  applicable  to  proceed- 
ings by  scire  facias,  aiixl  actions  of  debt  on  judgments,  that  no  de- 
fence which  existed  prior  to  the  rendition  of  the  judgment,  can  be 
set  up  by  the  defendant.""  The  merits  of  the  original  cause  of  ac- 
tion, or  the  grounds  upon  which  the  judgment  was  rendered,  or 
matters  which  then  existed  as  a  defence,  cannot  be  inquired  into. 
Proof  of  payment  or  other  defence  arising  since  the  rendition  of 
the  judgment,  are  pi'oper  subjects  of  inquiry. 


Sec.  IV.  —  FORMS  of  certificates  to  authenticate  a  transcript. 


The  State  of  Ohio, county, township,  ss. 

I  do  hereby  certify,  that  the  above  is  a  full  and  true  copy  from 
my  docket,  of  the  proceedings  had  by  and  before  me,  in  the  above 

cause,  rci-  n 

IStgned]         ^ jj_ ^  ^  p 

of  the  aforesaid  township. 

The  State  of  Ohio, county, township,  ss. 

I  do  hereby  certify,  that  the  above  is  a  full  and  true  copy  from 

the  docket  of  A B ,  deceased,  [o?-  .9«/y,  an  absent  and]  late 

a  justice  of  tlie  peace  of  said  township,  of  his  proceedings  in  the 
above  cause,  as  entered  in  his  docket,  which  is  in  my  possession, 
duly  certified. 

Dated ,  A.  D.  1 8—. 

[Signed]         G H ,  j.  p. 

of  the  aforesaid  township. 

(k)  But.  522,  ^93.  (ni)  8  Johns.  Rep.  77;  2  Str.  1034.  See  ai  to  third 

'I)  Id.  523,  $94.  porgons  and  Btrangers,  4  Cow.  R«p.  461. 


180  TRANSCRIPTS,  ETC., PROCEEDINGS  ON.     [P/7.  1 ,  C//.  26, 


Sec.  v. FORM(l)  OP  A  SCIRE  FACIAS  ISSUED  UPON  THE  TRANSCRIPT  OR 

DOCKET  OF  ANOTHER  JUSTICE. 


The  State  of  Ohio, county, township,  ss. 

To  any  constable  of  said  township,  greeting: 
Whereas,  A B recovered  judgnycnt  against  C D- 


for  the  sum  of  [//ere  state  the  amount  of  the  debt  or  damages^  and 

dollars cents  costs,  on  the day  of ,  in  the  year  1 8 — , 

before  L M ,  late  a  justice  of  the  peace  for  the  township 

of ,  in  the  county  of ,  and  costs  have  since  accrued  there- 
on to  the  amount  of dollars cents,  all  which  appears  by  [a 

transcript  iVom  the  docket  of  said  L ]M ,  or  if  the  fact  so  h(\ 

say^  all  whicii  appears  from  the  docket  of  said  L—  M ,  certified 

and  in  my  possession,]  and  which  said  judgment  and  costs  appear 
due  and  unsatisfied. 

You  are  therefore  commanded  forLhwith  to'summon  the  said  C 

D to  appear  before  me,  G H ,  a  justice  of  the  peace  in 

and  for  said  township  of ,  at  my  oflice  tlicrein,  at o'clock 

A.  ]M.  on  the  —  [tlic  time  here  stated  must  not  exceed  twelve  days  from 

the  date  of  the  u-rit']  day  of ,  in  the  year  18 — ,  to  show  cause,  if 

any  there  be,  why  execution  should  not  issue  against  him  for  the 
judgment  and  costs  aforesaid,  remaining  due  and  unpaid,  with  law- 
ful interest:  And  of  this  writ  make  legal  service  and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  1 8 — . 

G H ,  J.  p.  {Seal) 


Sec  VI.  —  HOW  the  scire  facias  must  be  served. 


The  writ,  if  the  defendant  be  found,  shall  be  served  and  returned 
in  like  manner  as  a  summons. (2) 

When  the  writ  is  returned  "not  found,"'  and  w'as  issued  to  carry 
into  effect  the  judgment  of  a  justice  whose  term  of  office  has  expir- 
ed, or  to  carry  into  effect  the  judgment  of  a  deceased  or  absent  jus- 
tice, trial,  judgment  and  execution  may,  notwithstanding,  be  had 
on  the  scire  facias,  the  same  as  if  the  writ  had  been  served,  as  has 
been  already  stated.(3)  But  in  proceedings  by  scire  facias  upon 
other  transcripts,  the  scire  facias  must  be  served  and  returned  in  the 
same  manner  as  a  summons." 

(n)  Stat.  523,  ^94;  SIR,  ^70. 


(1)  The  form  of  a  scire  facias  against  surety  for  stay  of  execution,  can  be  read- 
ily made  out  from  the  above  form,  and  the  one  in  Cliap.  21,  §5. 

(2)  See  the  mode  of  serving  and  returning  a  summons,  page  32. 

(3)  See  page  178. 


§5,6,7.]  TRANSCRIPTS,  fee, PROCEEDINGS  ON.  181 


Sec.  VII. — form  of  docket  entri  in  proceedings  by  scire  facias. 


B- 


vs. 
-D- 


Suit  on  following  certified  transcript  from  the  docket  of  L 

M ,  deceased,  late  a  justice  of  the  peace  of township, 

in county,  [or  say^  if  the  fact  he  so^  Suit  brought  on  the  fol- 
lowing proceedings  and  judgment  of  L M ,  an  absent  and 

late  a  justice  of  the  peace  of township,  county,] 

whose  docket  [duly  certified]  is  in  my  possession:  \Jiere  copy  the 
transcript  or  docket  of  the  action  icJiich  is  directed  by  statute^  page 
522,  §93,  and  then  follow  the  form  heretofore  given  at  pages  136, 
1 37,  in  entering  the  residue  of  the  proceedings  and  the  judgment^ 


PART  SECOND. 


PART    SECOND. 


TITLE  I. 
ACCORD  AND  SATISFACTION. 

^  [compromise.] 

An  agreement  between  the  party  injuring  and  the  party  injured, 
to  receive  some  act  or  thing  in  satisfaction  of  the  injury,  is,  when 
performed^  a  complete  defence  to  all  actions  on  account  of  such  in- 
jury. As,  if  you  contract  to  build  a  house  for  me,  or  to  deliver  a 
horse,  and  fail  in  it,  this  is  an  injury  for  which  I  may  have  a  remedy 
by  action;  but  if  I  accept  a  sum  of  money  or  other  thing  as  a  satis- 
faction, this  is  a  redress  of  that  injury,  and  entirely  takes  away  the 
action.^(l) 

In  order  to  support  this  defence,  it  must,  in  general,  appear  that 
there  was  a  consideration  for  the  accord  or  agreement  to  compro- 
mise, and  the  thing  to  be  done  must  be  certain  and  executed,  and 
the  satisfaction  should  proceed  from  the  defendant. 

1.   There  must  in  general^  he  a  consideration  for  the  accord. 

Payment  and  acceptance  of  part  of  a  debt,  before  it  is  due,  in 
satisfaction  of  the  whole,  is  a  valid  compromise.*"  So,  if  a  third 
person  go  security  for  a  part  of  the  debt,  in  consideration  of  which, 
the  creditor  agrees  to  lose  the  balance;  this  is  a  good  compromise:*^ 
for,  in  these  cases,  the  creditor  derives  a  benefit  from  the  arrange- 
ment, and  there  i§,  therefore,  a  sufficient  consideration  for  his  losmg 
a  part  of  the  debt.  But  where  a  specific  sum  is  due,  the  accept- 
ance of  a  less  sum  afterwards,  in  discharge  of  the  whole,  is  not,  in 
general,  a  satisfaction  of  the  whole;  unless  a  release,  under  seal,  is 

(a)  9  Co.  79;  3  Bla.  Com.  15  and  IG.  (c)  11  East,  390;  20  Johns.  Rep.  76;  2  T.  R.  24; 

(b)  Co.  Lit.  212,  (li).  1  Wend.  Rep.  164. 


(1)  "When  liifcher  security  is  taken  for  a  elclit,  as  a  bond,  or  otlier  scaled  instru- 
ment, for  tlie  amount  of  an  account  or  otlicr  debt  evidenced  by  a  writing'  not 
under  seal,  tlic  account  or  writing'  is  merged  in  the  iiiglier  securit}',  and  is  satisfied 
by  it.  So,  if  a  judgment  is  recovered  upon  an  account  or  sealed  instrument,  it  is 
merged  in  and  satisfied  by  tlie  judgment. 

24 


186  ACCOUn  AND  SATISFACTION.  [^Pl't.   2, 

executed,  or  there  is  some  consideiation  for  the  relinquishment  of  the 
residue;  or  the  part  reUnquishcd  is  merely  interest  on  the  debt."(2) 
The  delivery,  however,  of  property  (as  a  horse)  in  satisfaction  of  a 
debt  or  injury,  is  a  complete  satisfaction,''  although  the  property  de- 
livered may  amount  in  value  to  less  than  the  debt  or  damages.  And 
so,  where  several  creditors,  with  the  knowledge  of  each  other, 
agree  on  the  fixith  of  each  others  undertaking,  to  give  time  to,  or 
accept  a  composition  from,  a  debtor,  the  agreement  w  ill  be  binding 
on  every  creditor  who  is  a  party  to  it.'  So,  when  the  debt  or  dam- 
ages is  uncertain,  the  parties  may  agree  as  to  the  amount  to  be  paid, 
and  such  agreement,  when  performed,  will,  in  general,  be  binding."^ 

2.  The  accord  must  he  certain. 

Thus,  if  you  are  entitled  to  damages  from  me  for  a  breach  of  a 
promise  or  covenant,  and  we  agree  that  in  satisfaction  of  the  dam- 
ao"es  I  shall  work  for  you  two  or  three  days,  this  will  be  no  satisfac- 
tion, even  if  I  do  work  for  you  three  days,  for  it  is  too  uncertain.'' 

3.  The  accord  must  be  executed. 

An  agreement  to  do-a  thing,  in  satisfaction  if  a  debt  or  injury, 
is,  in  general,  no  satisfaction,  and  no  defence  to  an  action  for  the 
debt  or  injury,  unless  the  thing  agreed  to  be  done  has  been  per- 
formed.=  This  would  be  the  mere  substitution  of  one  right  of  action 
for  another.  In  such  case,  part  performance,  and  tender  of  the  re- 
sidue, are  insufficient;'^  and  though  the  agreement  to  do  the  thing 
at  a  future  day  is  good,  it  must  be  performed  before  an  action  is 
brought  for  the  debt  or  damages,  or  it  will  be  no  defence.'  But  if 
a  party  agrees  to  accept  a  note  or  other  thing,  in  satisfaction  of  a 
debt  or  injury,  and  actually  accepts  it,  or  accepts  the  note  of  a  tliird 
person,, in  full  satisfaction,  the  satisfaction  is  complete;''  for  then  the 
agreement  is  not  to  pay  the  note,  but  to  execute  or  to  deliver  a 
note,  which  is  done.  It  seems,  however,  where  a  specific  sum  is 
due,  that  the  agreement  to  receive,  and  the  actual  reception  of  a 
note,  for  a  less  sum,  in  satisfaction  of  the  w^hole,  is  not  a  satisfaction 
of  the  whole  debt.^ 

4.  The  satisfaction  should  proceed  from  the  defendant. 

If  the  satisfaction  be  executed  by  a  total  stranger,  who  has  no  in- 
terest in  the  accord,  as  agent  or  otherwise,  the  defendant  cannot 

<a)  Co.  Lit.  212,  (h);    17  Jolins.  Rep.  169;  5  (e)  Yelv.  124;   4  Mod.  88;  5  East.  230;  6  Co. 

East,  231  ;   5   Johns.  Rep.  271;  1  Taunt.  43,  (b). 

52G;   Yelv.  11,  n.  (l).  (g)  16  Johns.  Rep.  86;  5  Id.  386;  3  Johns.  Ca. 

(b)  Co.  Lit.  212,  (b) ;    2  T.  R.  24;  16  Johns.  243. 

Rep.  186.  (h)  5  Co.  79,  fb);  2  H.  Bla.319;  1  Taunt.  526; 

(c)  3  Cimp.  175;  2  M.  and  S.  122;  16  Ves.  374  5  East,  280. 

5  Johns.  Rep.  386;  13  Mass.  Rep.  424.  (i)   1  Rol.  ^b.  ]29,  (1),  17.     8  Ohio  Rep.  394. 

(d)  2  Ohio  Rep.  91.  (k)  2  Ohio  Rep.  91;  3  Wend.  Kep.  66. 

(1)   9  Eng.  C.  L.  Rep.  152. 


(2)  See,  in  relation  to  what  is  a  consideration.  Part  2,  Title  14. 


Title  2.]  ACCOUNT  book.  187 

avail  himself  ol  it.*  Accord  and  satisfaction,  however,  by  one  co- 
partner,'' is  a  complete  defence  to  an  action  against  the  others.  If 
two  or  more  injure  you,  and  you  accept  a  note  from  one  in  satisfac- 
tion of  the  injury  done  by  him,  but  not  to  operate  as  a  satisfaction 
for  the  others,  the  cause  of  action  will,  notwithstanding,  be  dis- 
charged as  to  all.'^  But  it  seems  a  release  of  one  of  two  or  more 
joint  debtors,  is  not  a  release  of  the  others,  when  such  covenant  is 
entered  into  by  the  consent  of  the  others,  and  when  they  have 
agreed  not  to  plead  it  in  bar  to  an  action  against  them  on  the  origi- 
nal cause  of  actioii.'' 


TITLE  II. 
ACCOUNT  BOOK. 


The  statute  of  this  State  provides,^  that  in  all  actions  wherein 
any  claim  or  defence  is  founded  on  book  account,  of  not  more  than 
eighteen  months'  standing,  in  which  is  dra.wn  in  question  the  validi- 
ty or  amount  of  any  such  book  account,  the  justice  may,  upon  the 
trial  of  such  action,  examine  the  party  under  oath  or  affirmation, 
touching  the  validity  of  such  account,  which  shall  be  admitted  as 
evidence  on  the  trial,  the  credibility  thereof  being  left  to  the  justice 
to  determine. 

It  is  not  unusual  for  a  party  to  draw  off  an  account  upon  a  sheet 
of  paper,  file  it  with  the  justice,  and  on  the  trial  swear  to  it  without 
producing  the  original  account,  made  at  the  time  of  the  dealing  or 
transaction.  This  is  well  enough,  if  no  objection  be  made  by  the 
opposite  party.  But  the  rule  is,  that  the  party  who  asks  to  prove 
his  account  by  his  own  testimony,  must  produce  on  the  trial  his  ori- 
ginal account  book,  in  which  the  items  were  first  entered,  or  he  can- 
not be  permitted  to  establish  the  validity  of  his  account  by  his  own 
testimony. 

If  the  party  made  no  entry  of  his  charges  at  the  time  of  the 
transaction,  his  account  made  out  at  a  subsequent  period  will  not 
entitle  him  to  the  benefit  of  his  own  oath.  It  is  essential  to  the  ad- 
mission of  this  kind  of  evidence,  that  the  original  account  book 
should  be  produced,  and  that  the  charges  should  be  in  such  a  state 
that  they  may  be  presumed  to  have  been  the  daily  minutes  of  the 
business  or  transactions  of  the  party. ^  Where,  however,  the  party 
makes  a  mere  temporary  memorandum,  for  the  purpose  of  being  en- 
tered on  his  account  book,  and  which,  after  being  entered  therein, 
is  destroyed,  the  account  book  itself,  containing  the  charges  tran- 

(a)  Cro.  Eliz.  541;  1  Str.  lA.  (d)  4  Wend.  Itep.  607;  2  nnrn.  and  Aid.  210. 

fb)  12Ea»t,  317;  9  Co.  79,  fb^;  5  Co.  117,  (h>     (e)  Btnt.  328,  $iO. 
(c)  2  Ohio  Rep.  90;  2  H.  ^^  M.  38.  (i?)  4  Mbsb.  455. 


188  ACCOUNT   BOOK.  [P/7.  2, 

scribed,  may  be  admitted  in  evidence  with  the  testimony  of  the 
party.  As,  wiiere  the  plaintiM"  was  a  hhicksmith,  and  kept  a  shitc 
in  liis  shop  on  which  he  .set  down  all  his  charges  as  they  accrued, 
and  was  in  tiie  habit  of  transcribing  the  entries  from  the  slate  into 
a  book,  and  after  that  was  done,  to  rub  out  the  charges  on  the  slate 
and  begin  anew;  it  was  decided  by  the  court  that  the  book  might 
be  considered  as  original,  though  transcribed  from  a  slate:  the  slate 
containing  merely  memoranda,  and  not  being  intended  to  be  per- 
manent.^ 

It  will  sometimes  be  necessary  for  the  justice  to  determine  Avhc- 
ther  the  original  account  book  be  such  an  one  as  will  justify  the 
admission  of  the  evidence  of  the  party  as  to  its  validity.  It  is  by 
no  means  necessary  that  it  should  be  a  bound  book,  or  that  it  should 
be  kept  like  a  merchant's.  It  should,  however,  appear,  as  has  al- 
ready been  stated,  to  contain  the  daily  minutes  of  the  transactions 
of  the  party.  The  charges  should  be  made  in  ?uch  a  manner  tiiat 
a  third  person,  without  the  explanation  of  the  party  himself,  could 
ascertain  from  the  book  the  indebtedneps  and  the  names  of  the  per- 
sons charged.  A  stick,  therefore,  upon  which  notches  are  made  of 
the  num]:)or  of  d-iys  that  one  party  h.as  worked  for  another,  would 
not  be  an  account  book. 

If  the  account  book  contain'sz^ws  whicli  do  not  shov/  to  a  stran- 
ger, an  indebtedness  and  the  names  of  the  persons  charged,  the  oath 
of  the  part}^  cannot  be  received  to  explain  or  to  establish  the  valid- 
ity of  his  account,  however  clearly  it  may  have  been  drawn  out  for 
or  by  him,  for  the  purposes  of  tlie  suit.  So,  a  merchant's  book  of 
blank  checks,  with  a  marginal  memorandum  of  checks  issued,  is  not 
an'account  bool-i  v.'hicli  the  party  mn.y  be  sworn  to.** 

If  a  person  makes  charges  for  things  which  are  not  properly  the 
subject  of  book  account,  he  will  not  be  permitted  to  sustain  them  by 
his  own. oath.  Money,  especially  if  of  any  considerable  amount,  is 
not  the  proper  subject  of  book  account,  and  cannot,  in  general,  be 
proved  by  the  oath  of  the  party;  still,  if  in  the  course  of  business, 
small  sums  arc  passing  between  the  parties,  these  may,  with  pro- 
priety, be  charged,  and  may  be  proved  as  other  iteuis.  An  individ- 
ual, however,  might  be  engaged  in  a  business  that  would  seem  to  jus- 
tify such  charges  and  his  testimony  founded  thereon.''- 

An  account,  purporting  to  be  drawn  oft"  by  the  party  himself 
from  his  original  or  daily  minutes,  is  admissible  in  evidence,  and  his 
testimony  may  be  received,  if  the  original  book  has  been  burnt  or 
destroyed  by  accident,  and  there  be  proof  that  the  items  of  the  ac- 
count actually  existed  in  the  party's  book.*^ 

If  any  of  the  items  of  the  account  were  entered  in  ihe  account 
book  by  a  clerk  or  other  third  person,  such  items  must  bo  proved 
by  the  person  who  made  the  entries,  and  the  testimony  of  the  party 
himself  in  relation  to  such  items  cannot  be  received.*^  If  the  clerk 
be  dead,  then  the  items  charged  by  him  may  be  received,  upon  proof 
pf  his  decease  and  hand  writing. 

(a)  13  Mas3.  427;  12  Pick.  Rep.  139.  (d)  2  Mass.  Rep.  569. 

(b)  Wright's  Rep.  219.  (e)  3  Tick.  380;  15  Mas.».  380. 
(p)  8  Ohio  Rep.  496. 


T'Ule  2.]  ACCOUNT  BOOK.  189 

The  account  book  of  a  deceased  person  should  be  admitted  in 
evidence  for  the  consideration  of  the  magistrate,  upon  proof  that 
the  charges  therein  are  in.  the  hand-writing  of  tlie  decedent,  that 
some  of  the  articles  charged  have  been  delivered,  and  that  he  kept 
fair  and  honest  accounts.*  If  the  charges  were  made  by  a  third 
person,  he  should  be  produced,  or  if  dead,  his  decease  and  hand- 
writing proved.  The  executor  or  administrator,  when  a  party  to 
such  suit,  cannot,  it  is  believed,  if  the  other  party  object,  be  exam- 
ined as  to  the  validity  of  the  account. 

After  the  account  is  received  in  evidence,  it  does  not  follow  of 
course,  .that  the  justice  must  allow  it.  When  it  does  not  appear 
fair  and  honest,  or  if  there  be  evidence  which  satisfies  the  justice 
that  the  party  does  not  keep  fair  account  books,  and  there  is  no 
other  evidence  to  establish  the  account  but  the  oath  of  the  party, 
the  justice  ought  to  reject  the  account  book  and  testimony  of  the 
pnvty. 

If  the  account  appear  to  be  of  more  than  eighteen  months'  stand- 
ing, from  the  time  the  suit  was  commenced,  the  party  cannot  be 
permitted  to  testify  in  relation  to  it;  but  the  delivery  of  the  articles 
or  the  performance  of  the  act  charged,  may  be  proved  by  other 
testimony.  When,  however,  there  is  a  running  book  account,  a 
part  of  the  items  of  which  have  arisen  and  been  charged  within 
eighteen  months  previously  to  the  commencement  of  the  suit,  and 
part  at  an  earlier  period,  the  party  making  the  account  is  a  com- 
petent \vitness,  as  well  to  prove  the  validity  of  those  items  which 
are  of  more  than  eighteen  months  standing,  as  those  of  a  subse- 
quent date.  A  book  account  is  an  entire  thing,  and  the  statute  has 
reference,  (in  regard  to  the  time  in  which  it  may  be  proved,)  to  the 
close  of  the  account.'' 

It  does  not  follow,  from  what  has  been  said,  that  the  account  book 
itself  shall  be  rejected  as  evidence,  whei'e  the  testimony  of  the  par- 
ty himself  ^^^ll  bo  excluded  in  consequence  of  all  the  items  being  of 
more  than  eighteen  months*^  standing.  On  the  contrary,  it  seems  to 
have  been  decided  by  the  supreme  court,  on  the  circuit,^  that  in 
sucii  case  the  account  book  itself  may  be  received  in  evidence,  af- 
ter a  foundation  is  laid  for  its  admission,  by  proving  that  the  party 
had  no  clerk,  that  some  of  the  articles  charged  had  been  delivered, 
that  the  book  produced  is  the  original  account  book  of  the  party, 
and  that  he  keeps  fair  and  honest  accounts;  and  this  by  disinteres- 
ted witnesses,  wlio  have  dealt  and  settled  with  him.^  If,  in  such 
caRC,  the  opposite  party  desire  the  creditor  to  be  sworn  as  to  the 
validity  of  his  account,  and  he  refuse,  the  justice  ought  not,  per- 
haps, to  receive  the  account  book  in  evidence;  at  all  events  it  would 
be  a  very  suspicious  circumstance. 

If  the  items  charged  are  such  as  generally  constitute  the  subject 
of  book  account,  tiio  fjuantity,  quality,  and  delivery  of  the  articles, 
if  goods  or  cliaticls,  or  the  services  performed,  if  labor,  may  be 
proved  by  the  oath  of  the  party  claiming  by  virtue  of  the  book  ac- 

(a)  Wright's  Rop.  168.  452.     12  Johns.  Rep.        (c>i  Wriphfa  Rep.  IGft. 

461.    3  Pick.  Rep.  9fi.  fd)  12  Johns.  Rep.  C21.    VViiglu's  Rep.  452, 

(l>)  5  Ohio  Rep.  33(1. 


190  ACCOUNT  BOOK.  {P ft.  2,   Tilk  2.'\ 

count.  But  lie  cannot  be  pennittcd  to  testify  as  to  tlie  value  of  the 
articles  ciuu-iied,  or  as  to  the  value  of  the  labor  performed;  except 
when  asked  1)\'  the  o])posite  j)arty  on  cross-examination,  as  to  their 
value.'' 

When  a  party  is  examined  as  a  witness,  in  relation  to  his  ac- 
count, lie  cannot  l)e  compelled  by  the  o))posite  ))arty  to  testify  as 
to  other  matters  entirely  foreiizn  from  the  account  book,  and  the 
items  therein  charged:  lie  must  testify,  if  the  opposite  party  make 
the  intjuiry,  as  to  the  time  when  the  items  were  charged,  how  they 
arose,  whether  they  have  been  paid,  and  must  disclose  every  thing 
connected  with  the  account  and  its  validity.  He  cannot  go  farther 
than  this,  and  prove  facts  out  of  or  foreign  to  his  account,  unless 
the  o]>posite  party  consent  that  such  testimony  should  be  received. 

Neither  the  book  of  the  party,  nor  his  testimony,  can  be  received 
to  ])rove  the  payment  of  cash  or  property  to  third  persons  by  a 
written  order;  for  better  proof  of  such  claim,  if  true,  (the  order  it- 
self,) may  be  had;''  and,  on  the  other  hand,  he  cannot  be  permitted, 
at  his  own  instance,  to  testify  as  to  a  contract  made  in  relation  to 
the  items  of  the  charge.' 

When  the  account  book  has  marks  which  show  that  the  items 
have  been  transferred  to  a  leger,  the  leger  must  also  be  produced, 
that  the  other  party  may  have  the  advantage  of  any  items  entered 
therein  to  his  credit.*^ 

When  there  has  been  a  settlement  between  the  parties,  it  will  be 
considered  as  correct  until  the  contrary  is  proved.  A  settlement 
may  be  impeached  and  corrected,  when  there  is  proof  of  a  mistake 
or  omission  m  it,  and  if  the  settlement  was  confined  to  particular 
items  of  the  account,  it  will,  in  general,  be  no  evidence,  whatever, 
that  other  items  not  stated  in  it  were  also  settled.*^  If,  upon  a  set- 
tlement, a  receipt  in  full  of  all  demands,  be  given,  it  must  be  pre- 
sumed that  all  demands  then  and  theretofore  existing  were  settled; 
but  such  a  receipt  will  not  preclude  the  party  who  gives  it  from 
showing  a  mistake  in  the  settlement,  and  recovering  what  is  still 
honestly  due  him.^  A  release,  however,  under  seal,  of  all  demands, 
will,  in  general,  eflectually  shut  out  every  claim  existing  at  the  time 
of  its  execution. 

The  oath  or  affirmation  of  the  party  in  relation  to  the  validity  of 
his  account,  may  be  in  the  form  following: 

You  do  solemnly  swear  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  [or,  if  tite  party  affirm^  sai/.  You  do  solemnly 
and  sincerely  declare  and  affirm,]  that  the  testimony  you  shall  give 
in  the  cause  now  in  hearing  before  me,  touching  the  validity  of  your 
book  account,  shall  be  the  truth,  the  w^hole  truth,  and  nothing  but 
the  truth;  and  this  you  do  as  you  will  answer  to  God  at  the  great 
day:  [oi\  if  the  party  ajjinn.  say^  under  the  pains  and  penalties  of 
perjury.] 

(a)  8  Ohio  Hep.  496.  (e)  11  Whea.  Rep.  250;  Wright's  Rep.  206;  6 

(b)  4  Mass.  Rep.  455.  Oh.  Rep.  287;  4  Id.  334. 

(c)  8  Ohio  Rep.  496.  (g)  Wright's  Rep.  764.  240. 

(d)  2  Maw  Rep.  569. 


TITLE  III. 


ACKNOWLEDGMENT  OF  DEEDS. 


It  is  necessary  to  insert  here  only  the  forms  of  acknowledgments 
of  deeds,  mortgages,  and  other  instruments  of  writing. 

The  acknowledgment  must  be  written  on  the  instrument  acknow- 
ledged. 


FORM  OF  THE  ACKNOWLEDGMENT   OF  A  DEED,  &C.,  BY  HUSBAND  AND  AVIFE. 

The  State  of  Ohio, r-  county,  ss. 

Before  me,  G H ,  a  justice  of  the  peace  in  and  for  said 

county,  personally  appeared  the  within  [o)-  above]  named  J 

G ,  and  M ,  his  wife,  and  acknowledged  the  signing  and 

sealing  of  the  within  [o/- above]  conveyance  [or  power  of  attorney, 
or  mortgage,  or  lease,  or  instrument,]  to  be  their  voluntary  act  ami 

deed;  and  the  said  M- being  at  the  same  time  examined  by  me, 

separate  and  apart  from  her  said  husband,  and  the  contents  of  said 
instrument  made  known  to  her  by  me,  she  then  declared  that  she 
did  voluntarily  sign,  seal,'  and  acknowledge  the  same,  and  that  she 

is  still  satisfied  therewith;  this day  of ,  A.  D.  18 — . 

G H ,  J.  p. 


FORM  OF  THE  ACKNOWLEDGMENT  OF  A  DEED  BY  A  SINGLE  PERSON. 

The  State  of  Ohio, county,  ss. 

Before  me,  G H ,  a  justice  of  the  peace  in  and  for  said 

county,  personally  appeared  the  within  [or  above]  named  J 

G ,  and  acknowledged  the  signing  and  sealing  of  the  within  [or 

above]  conveyance  [or  power  of  attorney,  or  mortgage,  or  lease,  or 

instrument,]  to  be  his  voluntary  act  and  deed;  this day  of , 

A.  D.  18—. 

G II ,  J.  p. 


FORM  OF  ACKNOAVLEDGMENT  OF  A  DEED,  &C.,  BY  AN  ATTORNEY. 

The  state  of  Ohio, county,  ss. 

Before  me,  G H ,  a  justice  of  the  peace  in  and  for  said 

county,  appeared  the  within  named  [hcreinsertthenameof  the  prin- 


1 9'2  APMINISTHATOHS  AND  EXECUTORS.  [I*rt.  2, 

c/paL]  by  his  nttornoy  in  fact  within  named  J A ,  and  ac- 

kn()\viod'u;od  tlio  siun'in^  and  sealing  of  llio  within  conveyance  [oj- 

instniiiient]  to  1)0  liis  voiuntarv  act  and  deed;  this day  of , 

A.  U  1  0—. 

e; II ,  J.  r. 


TITLE  IV. 


ADMINISTRATORS  AND  EXECUTORS. 


If,  hy  neglect,  sickness,  or  other  cause,  any  of  the  a.])j)raisers  ap- 
])ointed  to  appraise  and  make  an  inventory  of  the  estate  of  a  de- 
ceased jterson,  fail  to  attend  to  the  ])crf(>rmance  of  their  duty,  any 
iustice  of  the  peace  of  the  county  in  which  the  pro])erty  to  be  ap- 
praised is  situate,  may  appoint  others  to  supply  the  ])lace  of  such 
delinquent  appraisers.''  When  appraisers  are  api)ointed  by  a  jus- 
tice, he  must  issue  his  order  to  them,  in  substance  as  follows: 

The  State  of  Ohio, county,  ss. 

To  A B and  C D ,  of  the  township  of ,  in 

said  county: 

You  are  hereby  appointed  to  appraise,  on  oath,  the  estate  and 

effects  of  E F ,  late  of ,  deceased,  which  may  be  in 

said  count}'.  When  you  have  performed  that  ser\ice,  you  will  de- 
liver this  order,  and  your  doings  in  pursuance  thereof,  to  L 

M ,  executor  [or  administrator,  as  the  case  may  he^  of  said  de- 
ceased, that  he  may  copy  and  return  the  same  to  the  court  of  com- 
mon ]ileas  of county. 

Given  under  my  hand,  this day  of ,   18 — . 

G II ,  J.  P. 

For  issuing  the  order  and  appointing  the  appraisers,  the  justice  is 
entitled  to  a  fee  of  twenty-five  cents. 

Besides  the  proper  vouchers  to  establish  a  claim  against  the 
estate,  the  administrator  or  executor  may  also  require,  in  all  cases, 
the  affidavit  of  the  claimant,  in  the  following  form: 

The  State  of  Ohio, county,  ss. 

Before  me,  G H ,  a  justice  of  the  peace  in  and  for  said 

county,  personally  appeared  C D ,  above  named,  who  made 

solemn  oath  that  there  is  justly  due  on  the  above  claim,  the  sum  of 

(a)  Stat.  345,  $34. 


Title  4,]  ADMINISTRATORS   AND   EXECUTORS.  193 

dollars, —  cents,  that  no  payments  have  been  made  thereon, 


and  that  there  are  no  off-sets  against  the  same,  to  his  knowledge. 

{Sig7ied'\  C D . 

Sworn  to  and  subscribed  before  me,  this day  of ,  A.  D. 

18—. 


G H ,  J.  p. 

as  above  mentioned. 

Notwithstanding  the  claim  be  sworn  to,  if  the  administrator  or 
executor  doubt  its  justice,  it  may  be  referred  to  arbitration,  in  the 
mode  directed  by  the  statute.* 

If  a  claim  is  founded  on  an  account,  and  the  creditor  has  no  ac- 
count book,  and  the  executor  or  administrator  has  any  reason  to 
doubt  its  justice,  the  claim  should  be  rejected,  unless  the  account  is 
authenticated  by  the  oath  of  some  disinterested  person;  and  in  ad- 
dition to  this,  the  administrator  ought  to  require  the  oath  of  the 
creditor  himself,  that  there  are  no  credits,  payments,  nor  set  off, 
against  the  claim,  and  that  the  amount  is  honestly  due  him.  There 
is  no  other  safe  practical  rule. 

If  the  creditor  has  an  account  book,  and  the  last  item  of  the 
charges  against  the  decedent  is  of  more  than  eighteen  months' 
standing  from  the  time  of  the  death  of  the  decedent,  the  adminis- 
trator, if  he  thinks  the  creditor  does  not  keep  fair  books,  ought  to 
reject  the  account,  notwithstanding  the  affidavit  of  the  creditor. 
But  if  the  creditor  will  show  his  books,  and  the  administrator,  from 
an  inspection  of  theip,  or  otherwise,  is  satisfied  that  they  are  fairly 
and  honestly  kept,  it  would  be  proper  for  the  administrator  to  allow 
the  account,  on  the  affidavit  of  the  creditor,  in  the  form  given 
above. 

When  an  account  is  rejected,  the  creditor  must  authenticate  it 
by  the  recovery  of  a  judgment  against  the  administrator  or  ex- 
ecutor. 

The  directions  here  given  may,  sometimes,  in  their  rigid  practical 
application,  operate  harshly  and  unjustly.  But  if  not  followed,  eve- 
ry man  of  easy  conscience  may,  with  impunity,  plunder  estates. 
That  rule  is  a  bad  one  which  will  practically  sanction /"rawf/  in  some 
cases,  in  order  to  do  justice  in  others. 

The  Statute  also  points  out  the  time  and  circumstances,  under 
which  suits  may  be  maintnined,  and  when  they  are  barred,  as 
against  executors  and  administrators. (1) 

The  statute  also  points  out  the  circumstances  under  which  exe- 
cutions may  issue  upon  judgments  against  executors  and  administra- 
tors, and  against  whom  costs  of  suits,  on  claims  against  the  estate, 
are  to  be  taxed,  &c.(2) 

(a)  See  Stat.  353, 354. 


(1)  As  to  :i  solvent  estate,  see  Stat.    354  to  360;  as  to  an  insolvent  estate,  see 
Stat.  377  to  381. 

(2)  ,\s  to  judgments,  costs,  and  executions,  sec  Stat.  355,  35C.  377,  378.  380. 

2.5 


194  ADMINISTRATORS  AND  EXECUTORS.       [Pr/.  2,  Tif/c  4.] 

Executors  and  administrators  appointed  in  sister  states  and  terri- 
tories, can  sue  here.  They  may,  however,  be  recjuired  to  give  se- 
curity for  costs,  as  otlicr  non-residents. 

Executors  and  administrators  may  appeal  without  entering  into 
the  usual  recognizance  of  appeal.*  And  this  may  be  done,  indeed, 
as  well  by  administrators  and  executors  of  this  State,  as  by  foreign 
administrators  and  executors,  who  have  executed  anoflit-ial  l)ond  in 
this  State  for  the  faithful  discharge  of  their  duties.''  But  if  a  foreign 
administrator  or  executor  has  not  executed  such  official  bond,  he 
must  enter  into  a  recognizance  for  an  appeal.'' 

When  an  administrator  or  executor  appeals,  without  giving  bond, 
he  must  make  known  his  intention  to  do  so  within  ten  days  after 
the  rendition  of  judgment,  and  the  justice  should  make  a  memoran- 
dum thereof  on  his  docket.     It  may  be  in  the  form  following: 

June  1,  1846.  The  plaintiff  [or  defendant]  came  and  gave  notice 
that  he  appealed  this  cause  to  the  court  of  common  pleas. 

An  executor  or  administrator  is  not  liable,  upon  an  agreement,  to 
answer  for  a  debt  of  the  decedent  out  of  his  own  estate,  except 
when  such  agreement  is  in  writing,  and  signed  by  him,  or  some 
other  person  thereunto  by  him  lawfully  authorized.* 

(a)  Stat.  384,  $243.  (b)  Wright's  nep.  C31.  697.  (c)  atat.  423,  $5. 


TITLE  V. 


APPRENTICES. 

In  order  to  protect  infants  from  imposition,  a  statute  has  been 
enacted  regulating  the  terms  of  apprenticeship  and  the  covenants 
between  apprentices  and  their  masters.^ 

The  subject  will  be  examined  in  the  following  order: 

SECTION  I.  WHO  MAT  BE  BOUND  OUT    TO    SERVICE,  AND   FOR  WHAT  TIME, 

ir.         WHO  MAY  BIND  OUT  INFANTS. 

III.  WHAT    STATEMENTS  AND   COVENANTS  AN    INDENTURE    OF  AP- 

PREXTICESHIP  MUST  CONTAIN  AND  HOV,'  EXECUTED. 

IV.  WHEN  THE  INDENTURE  MUST  BE  RECORDED,  AND  THE  EFFECT 

OF  NOT  RECORDING. 

V.  OF  THE  DISSOLUTION  OF  THE  APPRENTICESHIP. 

VI.  OF  THE  RIGHTS  OF   THE  APPRENTICE. 

VII.  OF  THE  RIGHTS  OF  THE  MASTER. 

VIII.  OF  ENTICING  AWAY,    EMPLOYING,  OR   HARBORING  AN  APPREN- 

TICE, &C. 


Sec.  I. WHO  MAY  BE  BOUND  OUT  TO  SERVICE,  AND  FOR  WHAT  TIME. 

Any  male  person  within  the  age  of  twenty-one,  or  female  person 
within  the  age  of  eighteen  years  may  be  bound  until  they  arrive  at 
those  ages  respectively,  or  for  any  shorter  period,  to  serve  as  a 
clerk,  apprentice,  or  servant.** 

Sec.    II. WHO  MAY  BIND  OUT  INFANTS. 

The  father,  or  in  case  of  his  death  or  inability,  the  mother,  or  the 
guardian  of  infants,  may  bind  them  out.  So  the  trustees  of  town- 
ships may  bind  out  any  orphan  destitute  child,  or  the  child  of  any 
person  who  will  not  provide  for  such  child. "^ 

The  authority  of  the  guardian  of  a  female,  under  twelve  years, 
ceases  when  tiie  female  arrives  at  the  age  of  twelve;  and  the  autho- 
rity of  the  guardian  of  a  male,  under  the  age  of  fourteen,  ceases 
when  the  boy  arrives  at  the  age  of  fourteen.     Sucli  guardians  can- 

(a)  Hint.  63.  (I.)  Id.  63,  ?.1.  (c)  M.  63,  $2  and  3. 


196  APPRENTICES.         *  [Pft.  2,  Title^  5. 

not  bind  out  their  wards  beyond  tlie  period  of  their  guardianship, 
unless  the  court  of  common  pleas  of  tlie  county  approve  of  the 
terms  of  the  indenture.^ 


Sec,  III. WHAT    STATEMENTS  AND   COVENANTS  AN  INDENTURE  OF  AP- 
PRENTICESHIP MUST  CONTAIN,  AND  HOW  EXECUTED. 


No  agreement  whatever  will  constitute  an  apprenticeship,  unless 
there  are  indentures  executed. 

The  indenture  must,  in  all  cases,  contain  a  statement  of  the  age 
and  term  of  service  of  the  minor.  When,  however,  the  age  is  not 
known  it  must  be  inserted  according  to  the  best  information;  and 
the  age  so  inserted  must  be  deemed  and  taken,  in  relation  to  the 
term  of  service,  as  the  true  age  of  the  minor,  and  in  general,  can- 
not afterwards  be  disputed. ** 

When  a  female  is  bound  to  serve  for  four  years  or  more,  the  in- 
denture must  contain  a  covenant  on  the  part  of  the  master  or  mis- 
tress, to  teach  the  child  to  read  and  write,  and  the  first  four  rules 
of  arithmetic;  and  in  case  of  a  male,  bound  to  serve  for  five  years 
or  more,  to  read  and  write,  and  so  much  arithmetic  as  will  include 
the  single  rule  of  three,  if  such  minor  can,  by  law,  be  received  into 
and  educated  in  a  common  school ;  and  in  all  cases  the  indenture 
must  contain  a  covenant,  that  at  the  expiration  of  the  term  of  ser- 
vice, the  master  or  mistress  will  furnish  the  apprentice  with  a  new 
Bible,  and  at  least  two  suits  of  common  wearing  apparel. 

All  money  and  other  property  stipulated  to  be  paid  by  the  master 
or  mistress,  must  be  secured  to,  and  for  the  sole  use  of  the  minor.*^ 

The  indenture  must  be  signed  and  sealed  by  the  father,  or  in  case 
of  his  death  or  inability,  by  the  mother  or  guardian,  or  in  case  of 
an  orphan  or  destitute  child,  by  the  trustees  of  the  township,  and 
also  by  the  master  or  mistress;'*  but  the  parent,  guardian  or  trustees 
are  not  liable  on  the  covenants  contained  in  the  indenture,  unless 
there  is  an  express  stipulation  therein,  that  they  agree  to  be  made 
individually  liable.* 

When  a  female  is  bound  to  service  for  a  less  term  than  four 
years,  or  a  male  for  a  loss  term  than  five  years,  the  covenants  in 
relation  to  the  education  of  the  minor  may  be  such  as  the  par- 
ties can  agree  upon.  So,  where  the  guardian  of  a  female  under 
twelve,  or  of  a  male  under  fourteen  years  of  age  binds  out  the  ward, 
the  indenture  will  be  valid  if  approved  by  the  court  of  common 
pleas  of  the  county,  whatever  may  be  the  covenants  contained  in 

it,Hi) 

('a)  Stat.  432,  $7.  (d)  Stat.  64,  5:3, 

(b)  Id.  64,  $4.  (e)  Id.  66.  $16. 

(c)  Id.  64,  $5.  (g)  Id.  432,  $7. 


(1)  See  the  preceding  secUoa. 


§3,  4,  5,  6.]  APPRENTICES.  1  97 


Sec.     IV, WHEN     THE     INDENTURE     MUST     BE     RECORDED,    AND     THE 

EFFECT  OF  NOT  RECORDING  IT. 

If  the  master  or  mistress  neglect  to  have  the  indenture  recorded 
within  three  months  from  the  time  of  its  execution,  by  the  clerk  of 
the  township  or  the  recorder  of  the  incorporated  town  or  city 
where  the  master  or  mistress  resides,  the  apprentice  must  be  dis- 
charged from  service,  and  the  master  or  mistress  will  be  liable  for 
the  payment  of  all  property  stipulated  to  be  paid  by  the  indenture.* 
Recording  the  indenture  after  the  expiration  of  three  months,  will 
not  make  the  indentures  binding  upon  the  apprentice.(l) 


Sec    V. OF  THE  DISSOLUTION  OF  THE  APPRENTICESHIP. 


An  apprenticeship  is  a  personal  trust  between  the  master  and  ser- 
vant, and  ends  at  the  death  of  either  of  them.^  The  apprentice  is 
not  bound  to  serve  the  executor.*^  The  apprenticeship  may  also 
end  by  the  consent  of  all  the  parties  to  the  indenture.* 


Sec  VI.  —  OF  the  rights  of  the  apprentice. 


From  the  nature  of  the  relation  betw^een  the  master  and  appren- 
tice, the  former  is  bound  to  pay  for  medical  attendance  on  the 
latter.® 

It  is  the  duty  of  the  parent,  guardian,  or  trustees  of  a  township, 
who  bind  out  a  child  to  service,  to  see  that  the  apprentice  is  well 
used,  and  that  the  master  complies  with  his  agreement.^ 

The  parent,  guardian,  or  trustees,  who  bind  out  a  child,  may,  in 
the  name  of  such  child,  and  as  its  next  friend,  make  complaint  be- 
fore any  justice  of  the  peace  of  the  township  where  the  master  or 

(a)  Stat.  64,  $6.  (d)  2  Petersd.  Ab,  47;  Burr.  766.  801;  1  T.  R.  189. 

(b)  1  Salk.  66;   Burr.  782.  (e)  2  Kent's  Com.  265,  n.  (</). 

(c)  2  Stra.  1266.  (g)  Slat.  64,  §3. 

(1)  Tlie  Statute  provides,  (Stat  64,  §7.)  "Tliut  it  shall  be  the  duty  of  the 
clerk  or  recorder  to  record  all  indentures  or  covenants  of  ser\'ice  in  a  book  to  be 
by  him  provided  for  that  purpose;  and  he  shall  indorse  the  date  of  the  receipt,  and 
the  time  of  recording',  and  shall  furnish  certified  copies  wlu-n  required:  for  wliicli 
service  he  siiall  be  entitled  to  receive  ten  cents  for  each  hundred  words,  to  be  paid 
by  the  master  or  mistress,  or  in  case  a  certified  cop}'  is  required,  to  be  paid  for  by 
the  person  requiring  the  copy:  and  a  cei-tiiied  copy  of  the  record  of  tiie  indenture 
shall  be  prima  facie  evidence  of  the  existence  and  stipulations  of  such  indenture; 
and  any  clerk  or  recorder  who  shall  netjlect  or  refuse  to  comply  with  the  provisions 
of  this  act,  sliall  forfeit  and  pay  any  sum  not  exceeding' one  hundred  dollars,  to  be 
recovered  by  an  ;iction  of  del)t,  in  the  name  of  tl.e  Slate  of  Oliic,  before  any  court 
having  cognizance  thereof,  for  tlte  use  of  the  township,  incorporated  town,  or  city, 
where  such  offence  was  committed,  and  shall  also  be  liable  to  the  party  injured." 


198  APPRENTICES.  [Prt.  %  Titk  5^ 

mistress  resides,  for  any  oi'uelty,  neglect,  or  breach  of  covenant, 
on  the  part  of  the  master  or  mistress;  whereupon  the  justice  must 
summon  the  master  or  mistress  forthwith  to  appear  before  him,(l) 
and  if  lie  can  reconcile  the  parties  to  each  other,  he  may  make 
such  order  therein,  as  the  c<|uity  and  justice  of  the  case  may  re- 
quire.* If  the  justice  is  unable  to  settle  and  accommodate  the 
diflercnce  in  dispute  between  the  parties,  he  must  issue  a  venire  to 
any  constable  of  the  township,  to  summon  five  disinterested  free- 
holders, to  be  therein  named,  to  meet  at  a  time  and  place  certain, 
not  exceeding  three  days  thereafter ;(2)  and  the  jurors,  or  such 
other  persons  as  the  justice  may  appoint,  in  case  of  their  failure  to 
attend,  when  present  and  qualifled(3)  shall  proceed  to  hear  the  evi- 
dence, and  if  they  find  the  master  or  mistress  guilty  of  a  breach  of 

(a)  Stat.  64,  §8. 


(1)  Form  of  a  summons  against  a  master  or  mistress  for  cnieltj'  to  an  appren- 
tice, &c. : 

The  State  of  Ohio, county,  township,  ss. 

To  any  constable  of  said  townsliip,  greeting". 
You  are  hereby  commanded  to  summon  W M to  appear  forthwith  be- 
fore me,    G H ,   a  justice  of  the  peace  in  and  for  said  township,  at  my 

office  therein,  to  answer  tlie  complaint  of  J A ,  by  his  next  friend,  [here 

insert  the  name  of  the  guardian,  father,  mother,  or  trustees,  who  make  the  complaint,'] 
for  \Jiere  insert  the  caunc  of  complaint,  as,    "for   breach    of  tlie   covenants  of  said 

"W M ,  contained  in  the  indentures  of  apprenticeship  of  said  J A ," 

&c.,    or,    "  for  cruelty  towards  tlie  said  J A ,   his  apprentice,"  &c. 

or,    "for  neglecting  to  provide  the  said  J A ,  his  apprentice,  with ]: 

And  of  this  writ  forthwith  make  legal  service  and  due  return. 

Given  under  my  hand  and  seal,  this d;iy  of ,  in  the  year  18 — . 

G II ,  J.  p.  [Seal] 

The  summons  should  be  served  and  returned  as  in  other  cases,   for  which  see 
page  32. 


(2)  Form  of  a  Venire  for  a  jur}': — 

The  State  of  Ohio, county,  township,  ss. 

To  any  constable  of  said  township,  greeting. 

I  command  you  forthwith  to  summon    A U ,    [&c.    here   itiserting  the 

names  of  the  jury,]  to  be  and  appear  before  me,  at  my  office  in  said  townsliip,  on 
the day  of ,  in  the  year ,  at o'clock,  A.  M.,  as  a  jury,  to  in- 
quire whether  W M hath  been  guilty  of  [here  hriejly  state  the  cause  of 

complaint  according  to  the  circumstances,  and  then  add,]  and  of  this  writ  make  legal 
service  and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  in  the  year  18 — . 

G H ,  J.  p.,   (Seal.) 

of  the  aforesaid  township. 


(3)  Form  of  the  Oath  to  be  administered  to  the  jury: — 

You  and  each  of  you  do  solemnly  swear,  in  tiie  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  that  you  will  well  and  truly  inquire  into  the  complaint  of 
J A against  his  master,  W M ,  and  a  true  verdict  render,  accord- 
ing to  the  evidence;  as  you  will  answer  to  God. 


§6,  7.]  APPRENTICES.  1 99 

his  or  her  indenture  or  covenant,  of  neglecting  or  refusing  to  fur- 
nish necessary  food  or  clothing,  or  of  cruelty  towards  the  appren- 
tice, they  must  render  their  verdict  in  writing  accordingly,  and 
assess  the  damages  such  minor  child  hath  sustained;(l)  and  the  jus- 
tice must  enter  the  verdict  of  the  jury  upon  his  docket,  and  render 
judgment  thereon  to  the  amount  of  the  damages  and  costs,  against 
the  master  or  mistress, (2)  and  issue  execution.^  The  indentures  be- 
come void  from  the  time  of  the  rendition  of  this  judgment.  If  the 
jury  find  the  defendant  not  guilty,  the  justice  must  render  judg- 
ment for  the  costs  against  the  parent,  guardian,  next  friend,  or  trus- 
tees, (when  the  complaint  of  the  trustees  is  without  probable  cause,) 
and  issue  execution  accordingly.^(3) 


Sec.  VII. OF  THE  RIGHTS  OF  THE   MASTER. 


If  the  conduct  and  habits  of  an  apprentice  are  immoral  and  dis- 
solute, in  disregard  of  the  commands  of  the  master  or  mistress,  and 
his  or  her  authority  is  exerted  without  effect,  such  master  or  mistress 
may  make  complaint  to  any  justice  of  the  peace  of  the  township, 
who  must  give  notice  to  the  guardian,  parent,  or  trustees,  and  such 

(a)  Stat.  65,  $9  and  10. 


(1)  Form  of  the  verdict  of  the  ju'-y. 

J A ,  who  sues  by  his  next  friend, 

[here  insert  the  name  of  the  next  friend,] 
vs. 

W M- . 

We,  the  jury,  do  find  that  the  said  W  M is  not  guilty  as  complained 

against  him;  or  We,  the  jury,  do  find  that  the  said  W M •  is  guilty  of 

[here  state  the  part  of  the  complaint  ivhich  is  found  to  be  true,  as  "cruelty  against 

the  said  J A ,"   or  "neglecting  to  provide  the  said  J A with 

wholesome  and  sufficient  food,  and  necessary  and  comfortable  clothing,"  and  then 
conclude  as  follow-^.]  as  is  herein  complained  against  him,  and  do  assess  the  dam- 
ages of  the  said  J A ,  by  reason  thereof,  at dollars. 

The  jury  should  sign  their  names  to  the  verdict. 


(2)  The  judgment,  in  such  case,  is  in  the  usual  form,  for  which  see  page  105. 

(3)  Form  of  a  docket  entry  in  proceedings  of  an  apprentice  against  his  master: 

J A ,  by  his  next  friend,  A B , 

vs. 

W .  M . 

June  5,  1846.     Tliis  day  J A ,  by  his  next  friend,  A 13 ,  made 

complaint  to  me,  that  one  W M ,   (to  whom  said  J A is  bound 

as  an  appi-entice,)  is  guilty  of  [here  utale  the  cause  of  complaint  as  set  forth  in  the 
preceding  forms  in  this  Title,-']  and  thereupon  issued  a  summons;  [here  stale  the 
substance  of  the  summons,  its  rtturn,  tlie  appearance  of  t/te  parlies,  that  the  differ- 
ence in  dispute  could  not  be  settled,  the  issuing  and  substu7ice  of  the  venire,  the  re- 
turn, the  trial,  the  copy  of  the  verdict,  and  judgment.  ] 


200  AiTRKNTicEs.  [Prt.  2,  Title  5, 

proceedings  may  be  liad,  as  to  snmnionint!:  'I'^'l  iinpanneling  a  jury, 
as  has  been  above  directed;  and  if  upon  such  investigation  the  jury 
shall  he  of  opinion  that  the  master  or  mistress  ought  to  be  discharg- 
ed from  his  or  her  covenants,  they  must  so  certify  in  writing  to  the 
justice,''(l)  who  must  enter  the  same  upon  his  docket,  and  thereupon 
the  indentures  of  said  apprenticeship  Jjecome  void.  The  costs  in 
such  case,  except  the  fees  of  the  witnesses  for  the  apprentice,  must 
be  ])aid  by  the  master  or  mistress.'' 

The  master  is  entitled  to  an  action  against  the  apprentice  for  the 
loss  of  iiis  services  the  remainder  of  tlie  term  of  the  service,  after 
the  jury  have  annulled  the  indentures.*^ 

The  master  may  correct  his  apprentice  with  moderation  for  his 
negligence  or  misbehavior.*^  He  cannot  assign  or  transmit  to  an- 
other the  indentures  of  apprenticeship,  nor  can  an  apprentice  be 
assigned  to  another." 


Sec.  YIII. —  of  enticing  away,  employing,  or  harboring  an  ap- 
prentice, &LC. 

The  master  may  sue  before  a  justice  in  an  action  of  debt,  and 
recover,  not  exceeding  one  hundred  dollars,  from  any  person  who 
counsels,  persuades,  entices,  aids,  or  assists  an  apprentice  to  run 
away  or  absent  himself  from  the  service  of  his  master.  So,  the 
master  may  sue  in  an  action  on  the  case,  and  recover  triple  damages 
from  any  person  who  entertains,  harbors,  or  conceals  an  apprentice, 
knowing  that  he  ran  away.  Such  suit  may  be  brought  before  a 
justice,  if  the  damages,  when  tripled,  do  not  exceed  one  hundred 
dollars.^ 

If  an  apprentice  absent  himself  from  his  master,  without  leave 
first  obtained,  or  run  away  so  that  the  master  is  thereafter  deprived 
of  his  services  for  the  remainder  of  the  term  of  service,  or  any  part 

(a)  Stat.  65,  $11.  (e)  Doug.  71;  19  Johns.  Rep.  113;  2  Stra.  1267; 

(b)  Id.  65.512.  1  Salk.  68. 

(e)  Id.  66.  $15.  (g)  Slat.  66,  $13  and  14. 

(d)  2  Kent's  Com.  264. 


(1)  The  following'  form  of  the  verdict  or  certificate  of  the  jury  in  such  cases 
will  also  be  a  guide  to  the  justice  in  making'  out  the  form  of  the  complaints  in  the 
summons  and  venire.  For  the  forms  of  summons  and  venire,  in  other  cases,  see 
page  198. 

W M , 

vs. 

J A ,  apprentice  of  said  W M . 

We,  the  jury,  do  find  the  complaint  of  said  W jM against  said  J 

A ,  true,   that  the  conduct  and  habits  of  the  said   J A arc  immoral 

and  dissolute,  in  disregard  of  tlie  commands  of  his  said  master,  and  that  the  au- 
thority of  the  said  W M hath   been  exerted  for  tlie  reformation    of  the 

said  J A ,  without  effect;  and  wc  do  liereby  certify,  tliat  it  is  our  opinion 

that  the  said  W M ought  to  be  discharged  from  his  contract  contained  in 

his  indenture  of  apprenticeship. 

The  jurj  must  sign  this  verdict. 


§7,   8,]  APPRENTICES.  '  201 

thereof;  such  master  may  sue  the  apprentice  in  an  action  on  the 
case,  and  recover  the  damages  lie  may  have  sustained  thereby. (1) 

The  master,  daring  the  term  of  the  apprenticeship,  has  an  abso- 
lute and  exclusive  right  to  the  services  of  his  apprentice.  He  is, 
therefore,  entitled  to  all  the  earnings  and  gains  M^iich  an  apprentice 
who  runs  away  may  acquire  by  his  labor,  either  in  the  service  of 
another,  or  in  business  on  his  own  account.'^ 

Where  an  apprentice  is  employed  by  a  third  person,  without  the 
knowledge  or  consent  of  his  master,  the  master  is  entitled  to  all  his 
earnings,  whether  the  person  who  employed  him  did  or  did  not 
know  that  he  was  an  appi'entice,''  And,  it  see/ns,  that  in  such  case, 
no  deduction  can  be  allowed,  from  the  amount  of  the  recovery  by 
the  master,  on  account  of  paj-ments  made  by  such  employer  to  the 
apprentice,  before  he  knew  of  the  apprenticeship. ''(2) 

(a)  2  Petcrsd.  Ab.  30.  (b)  6  Jolins.  Rep.  274;  26  Eng.  C.  L.  Rep.  187; 

(c)  6  Jolins.  Rep.  274;  7  Greenl.  Rep.  457.  1  Salk.  68;  Com.  on  Con.  526,  527. 


(1)  Siat.  66,  §15.  Indentures  of  apprenticeship  entered  into  previous  to  the 
1st  day  of  June,  1831,  (the  time  the  statute  herein  referred  to  took  effect,)  must 
be  governed  by  the  statute  in  force  at  the  time  they  were  executed.  But  all  in- 
dentures executed  after  the  1st  day  of  June,  1831,  must  be  controlled  by  the  sta- 
tute now  in  force,  which  is  referred  to  in  this  work. 

(2)  I  cannot  speak  witl\  confidence  as  to  the  consequences  which  result  to  the 
rig-litsand  liabilities  of  the  master,  apprentice,  and  others,  when  the  indenture  does 
not  contain  the  stipulutio;is  required  by  the  statute. 

This  law  does  not,  like  tiie  Eiig'lisli  statute,  [5  JE/iz.  C.  4,  §41,]  make  void  all 
contracts  by  which  a  minor  is  bound  in  service,  uidess  such  contracts  are  made 
pursuant  to  the  statute.  It  is,  tliereforc,  contended,  and  with  very  good  reason, 
that  all  contracts  of  service,  legal  before  the  statute,  by  the  common  law,  are  legal 
now^;  and  inasmuch  as  a  fallier  who  is  entitled  to  the  services  of  his  minor  child, 
and  for  whom  he  is  obliged  to  provide,  might,  by  the  common  law  and  before  the 
statute,  assign  those  services  to  others,  he  may  do  so  now,  without  regard  to  the 
statute.  7  Mass  Hep.  145;  see  2  Id.  228.  If  this  course  of  reasoning  be  correct, 
then  the  covenants  of  the  master,  guardian,  or  parent,  contained  in  an  indenture  not 
made  pursuant  to  the  statute,  will  be  good  at  common  law,  and  an  action  will  lie 
for  a  breach  of  them;  but  the  parties  cannot,  in  sucli  case,  have  the  summary  re- 
lief, remedies,  and  penalties  pointed  out  in  the  statute.  "As  well  parents  and 
guardians,  as  masters,  ought  then  duly  to  consider,  that  if  the  contract  of  appren- 
ticeship does  not  pursue  tlie  statute,  the  apprentice  cannot  be  discharged  under  the 
statute,  if  the  master  break  the  contract  on  his  part;  neither  if  the  contract  be  bro- 
ken on  the  jiart  of  tlie  apprentice,  can  the  master  have  those  remedies  and  that 
relief  provided  in  the  statute  for  contracts  made  pursuant  to  it;  but  the  remedy 
for  eacli,  is  by  action,  whicli  in  many  cases  may  be  inadequate."  Id.  per  Par- 
sons, C.  J. 

If  the  contract  is  not  pursuant  to  the  statu',  e,  it  will  not  be  good  at  common  law, 
as  against  the  minor:  [I  Sulk.  479;  1  Mod.  276;  6  Id.  154:]  for  an  infant  cannot 
bind  himself  so  as  to  be  sued  on  his  deed;  it  will,  however,  be  good  as  against  the 
other  parties,  whose  promises  or  covenants  it  contains. 


26 


TITLE  VI. 


ARBITRATION. 


The  act  by  which  parties  refer  any  matter  in  dispute  to  a  third 
person,  is  called  a  stibmission  to  arbitration;  the  person  to  whom 
the  reference  is  made,  an  arbitrator;  when  the  reference  is  made 
to  more  than  one.  and  provision  made,  that  in  case  they  shall  disa- 
gree, another  shall  decide,  that  other  is  called  an  umpire;  the  judg- 
ment pronounced  by  an  arbitrator  or  arbitrators,  an  axoard;  that 
by  nn  umpire,  an  nvipiragc.  or  award. 

The  only  rules  of  law,  upon  this  subject,  which  can  arise  before 
a  justice  of  the  peace,  are  those  relating  to  the  submission  of  a  suit 
to  arbitration,  and  the  principles  growing  out  of  an  award,  as  an 
instrument  of  evidence.  This  title  must,  therefore,  be  confined  to 
these  two  subjects. 


OF  ARBITRATIONS  BEFORE  A  JUSTICE;    AND  HEREIN, 

{A)   When  and  hoio  a  cause  pending.,  S^-c.  may  be  subinilted 
tu  arbitrators.,  mid  tlierfui  ins  of  tkc  citation.,  oaths.,  and 
aivard. 
(B)  How  an  award  may  be  set  aside.,  or  an  appeal  taken. 
of  the  force  and  effect  of  an  award,  as  an  instrument  of 
evidence;  and  herein, 
{A)  General  requisites  of  an  aivard.  to  render  it  valid. 

(B)  When  an  award  is  void. 

(C)  Its  effect  lohen  valid. 


Sec.  I. OF  ARBITRATIONS  BEFORE  A  JUSTICE;    AND  HEREIN, 

{A)  When  and  how  a  cause  pending.,  Sfc.  may  be  submitted  to  ar- 
bitrators., and  the  forms  of  the  citation.,  oaths.,  and  award. 

The  parties  to  any  suit  pending  before  a  justice,  may,  at  any  time 
before  trial  and  judgment  rendered,  have  the  cause  submitted  to  the 
arbitration  of  any  three  disinterested  men  whom  they  can  agree 
upon. 

If  the  persons  chosen  as  arbitrators  are  present  before  the  jus- 
tice, they  jnay  immediately  hear  and  determine  the  cause,  after 


[Prt.  2,  Title  6,  §  1 ,  (A).]       arbitrations.  203 

being  duly  sworn  or  affirmed.^(l)  If,  however,  the  persons  chosen 
as  arbitrators  be  not  present,  the  justice  should  issue  a  citation(2) 
for  them  to  appear  at  the  time  and  place  of  trial;  which  citation 
may  be  served  by  a  constable,  or  the  parties,  as  they  may  agree.^ 

When  the  arbitrators  convene  and  are  sworn,  they  proceed  to 
hear  and  determine  the  cause;  the  witnesses  being  also  sworn  by 
the  justice.(3) 

The  arbitrators  make  out  their  award  in  writing,  and  return  the 
same  to  the  justice.  It  is  valid  when  signed  by  any  two  of  them.''(4) 
The  justice  must  enter  the  award  on  his  docket,  and  render  judg- 
ment and  issue  execution,  as  in  other  cases.'' 

(a)  Stat.  511,532.  (b)  Id.ib.533. 


(1)  FoMi  of  the  oath  to  arbitrators. 

You  jiiflBach  of  }-oii  do  solemnly  swear,  in  the  presence  of  Almighty  God,  the 
searcher  ofmll  liearts,  ['/  tJicy  affirm,  say.  You  do  solemnly  and  sincerely  declare 
and  affirm,]  that  you  wiU  honestly  decide  the  matter  in  controversy  now  pending 

before  nie,  between  A B and  C D ,  and  make  out  an  impartial 

award,  [if  they  affirm,  say,  and  this  you  promise  under  the  pains  and  penalties  of 
perjury.] 

(2)  Form  of  citation  to  arijitrators. 
"i'o  [naming  the  arbitrators  ] 

A B and  C D ,  parties  litigant,  in  a  suit  pending-  before  me, 

have  chosen  you  as  arbitrators.    You  are,   therefore,  in  the  name  of  the  State  of 

Ohio,  commanded  to  appear  at  my  office,  in  tlie  townsiiip   of ,  in  the  county 

of ,  at o'clock  A.  M.  [or  P.  M. ]  on  the day  of ,  in  the  year , 

[or  forthwith,  as  the  case  may  ht,'\  to  arbitrate  said  suit. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G II ,  J.  p.  {Seal.) 

(3)  Form  of  oath  to  witnesses. 

You  do  solemnly  swear,  in  the  presence  of  Almighty  God,  the  searcher  of  all 
hearts,  [or  if  they  affirm,  say.  You  do  solemnly  and  sincerely  declare  and  affirm,] 
that  the  testimony  you  shall  give  to  these  arbitrators  concerning  the  matters  sub- 
mitted to  their  determination  by  A B and  C D ,  shall  be  the  truth, 

the  whole  truth,  and  nothing  but  the  truth,  [if  the  witnesses  affirm,  add,]  and  this 
you  promise  under  the  pains  and  penalties  of  perjiu-y.] 

(4)  Form  of  the  award. 
A B ,   ^ 

vs.  C      Suit  before  G II ,  J.  p.     Jinic  4,  1850. 

We,  the  undersigned,  arbitrators  chosen  by  the  parties  in  the  above  cause,  this 
day  met  before  said  justice  and  were  duly  qualified.  After  hearing  the  testimony 
and  the  allegations  of  the  parlies,  we  did  and  do  award  and  adjudge  that  the  plain- 
tiff hath  not  any  cause  of  action  against  the  delendant,  and  that  he  p.ay  the  costs 
of  tiiis  suit  aiul  reference,  [or  if  the  decisio7i  be  so,  say,  that  the  plaintiff  hath  a 
good  cause  of  action  against  tlie  said  defendant,  and  that  there  is  due  from  the  said 

defendant  to  tlie  said  plaintiff  the  sum  of dollars cents,  and  that  each 

parly  pay  one  half  of  the  costs  of  the  above  suit  and  of  the  reference;  or  say, 
thatthe  defendant  owes  the  ])laintifr  £.50,  that  the  plaintiff  owes  the  defendant 
$25,  leaving  a  balance  of  ?25  due  from  the  defendant, to  the  plaintiff,  which  we 
award  and  determine  that,  with  the  costs  of  this  suit  and  of  the  reference,  the  de- 
fendant pay,]  and  that  judgment  be  entered  accordingly. 

Given  under  our  hands  this day  of ,  A-  D.  18 — • 

•"  B B , 

C I. , 

E F . 


204  ARurniATioN.  [Prt.  2,  Title  6, 

Where  claims  against  a  decedent's  estate,  for  less  than  one  hun- 
dred dollars,  arc  reterred  to  arbitration,  a  justice  of  tl)c  peace  must 
a]>prove  of  the  arbitrators,  and  upon  entering  in  his  docket  the 
names  of  the  parties,  a  memorandum  of  the  agreement  of  reference 
made  by  the  parties,  and  a  statement  of  the  names  of  the  arbitra- 
tors, and  iiis  approval  of  them,  the  arbitration  proceeds  in  like  man^ 
ner  as  if  it  were  a  cause  pending  before  the  justice,  and  submitted 
to  arbitration.*  The  judgment,  however,  on  the  award,  is  entered 
against  the  assets,  in  the  form  heretofore  given, (1)  The  statute 
directs  when  and  how  execution  may  be  issued  thereon. (2) 

It  should,  perhaps,  ajipear  from  the  docket,  that  all  the  arbitra- 
tors heard  the  parties,  although  only  two  decided  the  case.''  In 
general,  arbitrators  may  award  that  the  parties  sliall  do  any  act 
which  they  could  agree  to  do,  unless  indeed  it  be  that  a  party  shall 
cause  a  third  jierson  to  do  an  act  which  it  does  not  appe^^he  has 
a  right  to  retjuire  of  him.*^  But,  in  arbitrations  before  aj^stice,  it 
would  seem  necessary  that  the  award  should,  in  all  cases,  be  such 
as  could  be  carried  into  eflect  by  judgment  and  execution;  and  con- 
sequently it  must  be,  either  that  the  party  has  no  good  cause  of  ac- 
tion, or  for  the  payment  of  money.  It  need  not,  perhaps,  be  here 
added,  that  a  justice  cannot  render  judgment  nor  issue  execution  to 
compel  a  party  to  do  any  thing  but  to  pay  money. 

Where,  by  the  terms  of  the  arbitration  bonds,  the  award  is  to  be 
made  a  rule  of  the  court  of  a  justice  of  the  peace,  this  will  not  au- 
thorize a  magistrate  to  render  judgment  on  the  award,  as  the  statute 
in  relation  to  an  award  being  made  a  rule  of  courts  of  record,  does 
not  include  a  justice's  court.'' 

(i>)  IIoiv  an  award  may  be  set  aside. 

The  judgment  of  the  justice  on  the  aw^ard,  is  final  and  conclusive 
between  tlie  parties,  unless  the  award  was  procured  by  fraud,  cor- 
ruption, or  other  undue  means,  in  w-hich  case  the  law  permits  the 
party  who  wishes  to  set  it  aside,  to  pursue  either  of  the  following 
modes. 

1st.  He  may,  within  ten  days  after  judgment  is  rendered  on  the 
award,  but  not  after  that  time,  appear  before  the  justice  and  show 
by  proof,  that  the  award  was  procured  by  frnud  and  corruption,  or 
other  undue  means.  Notice  should  be  given  to  the  adverse  party, 
so  that  he  mny  be  present,  and  prepared  to  rebut,  the  evidence. 
Neither  of  the  parties  can  be  examined  as  witnesses,  except  by  con- 
sent. Proof  by  a  witness,  that  he  verily  believes,  or  is  of  opinion 
that  the  award  was  procured  by  fraud,  corruption,  or  other  undue 
means,  will  not  be  evidence.  Facts  must  be  shown,  which  prove 
beyond  a  reasonable  doubt  that  there  has  been  gross  misbehavior 
on  the  part  of  the  arbitrators,  or  fraud,  collusion,  or  other  undue 

(a)  Ptat.  353,  35-1, 586,  87,  and  (b)  G  Mass.  Rep.  496.  (d)  Wright's  Rep.  06. 

379, 3S0,  5218,  220.  (c)  13  Johns.  Rep.  264. 


(1)  See  arUe  p.  121.  (2)  See  Stat.  354,  355,  356. 


§1,(A),(B),2,(A).]  ARBITRATIONS.  205 

means,  used  in  procuring  the  award.  The  mere  circumstance,  that 
in  the  opinion  of  the  justice,  the  award  is  too  large  or  too  small,  or 
that  the  arbitrators  did  not  give  proper  weight  to  some  of  the  testi- 
mony, will  not  justify  him  in  setting  aside  the  award.  If  the  justice 
is  satisfied,  from  the  facts  proved,  that  the  award  was  obtained  by 
fraud,  corruption,  or  other  undue  means,  it  is  his  duty  to  set  it  aside, 
and  then  try  the  cause  and  render  judgment  as  in  other  cases. ^  Ei- 
ther party  may  appeal  from  this  judgment. 

2d.  The  party  wishing  to  set  aside  the  award,  instead  of  trying 
the  question  before  the  justice,  whether  the  award  was  obtained  by 
fraud,  &c.,  may  file  an  affidavit,  setting  forth  in  general  terms,  that 
the  award  was  obtained,  as  he  verily  believes,  by  fraud,  corruption, 
or  other  undue  means;  and  thereupon  enter  into  recognizance  for 
the  appeal  of  the  cause  to  the  court  of  common  pleas.''(l) 

The  afMavit  should  be  filed,  and  recognizance  for  an  appeal  en- 
tered, within  ten  days  after  the  judgment  was  rendered.  An  ap- 
peal cannot  be  taken  until  the  affidavit  is  filed.*^ 

If  the  court  of  common  pleas -are  satisfied  that  the  award  was 
obtained  by  fraud,  corruption,  or  other  undue  means,  they  will  set 
it  aside,  and  hear  and  determine  the  cause  on  the  merits,  as  in  other 
cases  of  appeal ;"  but  if  they  find  the  award  was  not  so  obtained, 
they  will  render  judgment  thereon,  and  for  the  costs  of  suit,  ^and 
issue  execution  as  in  other  cases.** 

The  powers  and  duties  of  the  justice  over  a  cause  after  it  is  ap- 
pealed, have  been  already  stated. (2) 


►Sfx.  II. THE   FORCE    AND    EFFECT    OF  AN  AWARD  AS  AN    INSTRUMENT 

OF  evidence;  and  herein. 


{A)  General  recpii.sites  of  an  award^  to  render  it  valid. 

In  order  to  know  whether  an  award  is  evidence  of  the  settle- 
ment of  a  controversy,  or  can  be  enforced,  it  is  necessary  to  as- 

(a)  Stat.  512,  $34,  35.  (c)  Id.  ib.  $37. 

(b)  Id.  ib.  $36.  (d)   Id.  ib.  $38. 


(1)  Form  of  ;in  affidavit  to  procure  an  appe.il. 

vs.  ^   Judgment  on  award,  upon  tlic  docket  of  G —  IT — ,  j.  p. 

Tlie  State  of  Ohio,  county,  ss. 

Tlie  said ,  party  to  said  suit,  makes  oalli,  and  says,  that  tlie  award 

in  tlie  above  cause  was,  as  he  verily  believes,  obtained  by  fraud  and  other  undue 
means. 


Sworn  to  and  subscribed  before  me,  this day  of ,    18 — . 

G H ,  r.  p. 

(2)  See  page  12.5. 


20G  ARBITRATIONS.  [Prt.  2,  Title  6, 

certain  in  the  first  place  what  kind  of  award  is  good  and  valid  in 
law. 

The  provisions  of  the  statute*  in  relation  to  arbitration  are  only 
applicable  to  cases  where,  by  the  agreement  of  the  parties,  the 
award  is  to  be  enforced  by  the  court  of  common  pleas,  by  attach- 
ment, if  necessaiy,''  and  consequently,  parties  may  submit  matters 
in  controversy,  either  by  bond  or  contract  in  writing,  or  even  by 
verbal  agreement;'^  and  an  award  may  likewise  be  either  in  writing 
or  verbal;  or  when  its  form  is  specified  by  flie  submission,  accord- 
ing to  the  agreement  of  the  parties. 

No  precise  form  of  words  is  necessary  to  constitute  an  award;  all 
that  is  necessary  is  for  the  arbitrator  to  express  by  it  a  decision  up- 
on the  matter  submitted  to  him.** 


(B)  W/ioi  an  aicard  is  void. 


If  an  award  is  void,  the  agreement  to  perform  it  is  also  void,®  and 
nothing  in  relation  to  it  is  binding  upon  any  one. 

It  is  from  the  contract  of  submission  that  the  arbitrators  derive 
their  authority,  and  by  it  they  must  be  governed  in  their  proceed- 
ings. A  departure  from  its  stipulations  renders  their  award  void 
for  defect  of  power  to  act.^  So  strict  is  the  rule  in  this  respect, 
that  if  the  parties  agree  that  the  award  shall  be  in  writing,  under 
the  hands  and  seals  of  the  arbitrators,  an  award  under  their  hands, 
but  not  under  their  seals,  is  void.^ 

It  is  a  general  rule,  that  unless  the  arbitrator  makes  his  award  of 
all  matters  submitted  to  him,  the  award  is  entirely  void;  for  the 
very  object  of  the  submission  remains  unperformed.  When  the 
submission  is  oi several  specific  things.,  if  it  appear  from  the  face  of 
the  award,  that  the  arbitrator  has  omitted  to  decide  some  one  of  the 
specific  things,  the  award  will  be  void.'  When  the  submission  is 
general,  of  all  matters  in  dispute,  or  in  difference,  without  specif}^- 
ing  what  they  are,  the  arbitrator  need  only  make  his  award  of  such 
things  whereof  he  has  notice;  if  there  be  other  things  in  contro- 
versy, not  included  in  the  award,  but  of  which  the  arbitrator  had 
not  notice,  yet  the  award  is  good.''  But  if  a  matter  of  difference, 
which  comes  within  the  scope  of  the  submission,  be  notified  to  an 
arbitrator,  and  he  should  neglect  to  act  upon  it,  without  the  consent 
of  the  parties,  and  award  upon  other  matters,  the  award  would  be 
yoid.'     So,  when  the  award  is  made  after  the  time,(l)  or  at  a  differ- 

(a)  Slat.  67.  (g)  3  Oliio  Rep.  510;  6  Mass.  Rop.46. 

(b)  Wrislit's  Rep.  37.  86.  (Ii)  H  Jolins.  Rep.  133. 

(c)  1  Salk.  75;  2  I'eicrsd.  Ab.  109;  3  Oliio  Rep.     (i)  7  East's  Uep.  81;   9  Ens.  C.  L.  Rep.  382. 

510;  Wrislit's  Rep.  37.  (k)  Cro.  Eliz.  838;    15  East's  Rep.  213. 

(d)  27  Eng.  Com.  Law  Rep.  135-  (1)  16  East's  Rep.  58;  Willes.  268;  7  Mod.  345. 

(e)  Willes.  248. 


(1)  In  g'eneral,  there  is  a  pai-liciilar  lime  limited,  within  which  an  award  must 
be  made  and  published.  If  the  arbitrators  have  "U7itil"  a  certain  day,  an  award 
made  on  that  day  is  good  ;  lor,  in  these  cases,  the  word  ''until"  is  construed  to 


§2,  (B).]  ARBITRATIONS.  207 

ent  place  from  that  agreed  upon  by  the  parties,  or  after  the  decease 
of  one  of  the  parties  to  the  submission,*  it  will  be  void. 

The  award  itself  must  show  that  the  arbitrators  met  at  the  time 
and  place  specified  in  the  submission,  or  it  will  be  void.*"  If,  how- 
ever, no  time  or  place  was  agreed  upon  by  the  parties,  then  the  ar- 
bitrators may  meet  when  and  where  they  please. 

Notice  should  be  given,  of  the  time  and  place  of  the  meeting  of 
the  arbitrators,  to  the  parties,  if  the  time  and  place  be  unknown  to 
them ;  otherwise  the  award  may  be  void'  in  chancery,  but  the  ob- 
jection cannot  be  made  in  a  suit  on  the  award.^ 

After  the  agreement  of  submission,  and  at  any  time  before  the 
award  is  made,  the  powers  of  the  arbitrators  may  be  revoked  by 
either  party  to  the  submission.®  No  particular  form  is  necessary,  to 
render  the  revocation  effectual;  but  it  must  be  according  to  the  sub- 
mission; that  is,  under  seal,  if  the  submission  was  under  seal;  and^it 
may  be  by  word  of  mouth,  if  the  submission  was  by  parol. ^ 

If  the  arbitrators,  after  the  revocation,  make  an  award,  it  will  be 
void.(l) 

Where  the  award  is  so  uncertain  in  its  terms  that  a  person  unac- 
quainted with  the  situation  of  the  parties,  or  the  circumstances,  can- 
not, from  reading  the  award,  ascertain  what  steps  are  to  be  taken 
to  perform  it,  it  will  be  void.  Thus  an  award  to  pay  for  the  stove^ 
without  saying  Vvhat  stove,  is  void,  for  uncertainty.''  An  award  to 
give  good  and  siifficient  security^  without  defining  the  nature  of  the 
security,  has  been  held  to  be  void.'  When  specific  articles  of  pro- 
perty are  to  be  delivered,  they  must,  if  possible,  be  so  described, 
that  when  a  delivery  or  an  offer  to  deliver  is  made,  it  may  be  known 
whether  the  articles  are  the  same  that  the  arbitrators  intended,  or 
not.  Therefore,  an  award,  directing  A  to  deliver  up  the  books, 
papers,  accounts,  a  small  chest,  and  wearing  apparel,  in  his  posses- 
sion, belonging  to  B,  is  void,  for  uncertainty.''  But  every  thing  is 
to  be  intended  in  favor  of  an  award;  and  courts  will  intend  an 
award  to  be  certain,  unless  it  appears  uncertain. 

But  an  award  may  sometimes  be  good  in  part,  and  bad  in  part. 
When  the  part  that  is  void  is  not  so  connected  with  the  rest  as  to 
affect  the  justice  of  the  case,  the  residue  will  be  good  and  valid.' 
But  when  the  whole  is  so  connected  together,  that  the  part  which  is 

(a)  3  Doug.  406;  2  B.  and  Aid.  39J.  (h)  2  Caine's,  235;  3  Cowen's  Rep.  70. 

(b)  3  Ohio.  Rep.  287.  (i)  9  Jolins.  Rep.  43.  See  1  Taunt.  5.i4. 

(c)  4  Dall.  232;  6  Cowen's  Rep.  103.  (k)  3  Ohio  Rep.  266.  See  9  Eiig.  C.  L.  Rep.  52. 

(d)  5  Wend.  Rep.  516;  8  Pet.  U.  S.  Rep.  165.  (1)  2  Cowen's  Rep.  638;  8  Mass.  Rep.  398;   13 

(e)  16  Johns.  Rep.  285.  Id.  244. 
(g)  8  Johns.  Rep.  125. 


be  inclusive.  See  5  East's  Rep.  244,  where  much  learning'  .ind  law  is  collected  in 
relation  to  "unlil,"  a  word  wliich  is  used  in  an  inclusive  or  exclusive  sense,  accord- 
ing as  tiie  context  and  subject  matter  of  the  sentence  will  call  lor  eillicr  meaning-. 

(1)  The  part)'  revoking-  tlie  submission  is  liable  to  a  suit  on  the  bond  or  other 
a^eement  of  submission,  in  which  the  expenses,  costs,  and  ciiarges  of  the  opi)o- 
site  parly,  about  preparing  for  the  trial  before  tlie  arbitrators,  may  be  recovered. 
Bac.  M.  Arb.  and  Award,  (B). 


208  AKBiTRATOus.  [Prt.  2,  TilleG, 

void  controls  or  aflocts  lluit  jtart  \vliich  is  valid,  the  whole  is  void. 

So,  when  arbitrators  transcend  tiieir  authority,  their  .-ivvard  as  to 
matters  not  submitted  to  ihem,  will  l)e  void;  but  it"  that  which  is 
void  aflects  not  the  merits  of  the  submission,  the  residue  will  be 
valid.'' 

An  award  to  settle  a  controversy  in  relation  either  to  the  pos- 
session of,  or  title  to  real  estate,  is  void.** 


(C)   T/tc  effect  of  an  award.,  vhen  valid. 

Parties  may  agree  to  submit  a  specific  subject  of  controversy  to 
arbitration,  and  the  award  thereon,  although  final  and  conclusive 
between  the  parties,  will  leave  all  other  subjects  open  for  future 
quarrel  and  controversy.  So  they  may  refer  all  matters  in  dispute 
in  a  particular  cause,  and  the  reference  will  be  confined  solely  to 
the  matters  in  dispute  in  that  trial.'^ 

On  a  submission  to  arbitration  ^"-of  all  matters  in  dlfjhxnce^^''  ihe 
award  is  conclusive  on  the  jTiirties  as  to  all  causes  of  action  subsist- 
ing between  them  previously  to  the  submission;  but  when  it  can  be 
shown  that  the  subject  of  a  subsequent  action  was  not  a  matter  in 
difference  at  the  time  of  the  suljiuission,  nor  referred  by  the  parties 
to  the  arbitrators,  nor  acted  upon  by  them,  the  award  will  not  bar 
the  subsequent  action.''  If  parties  submit  to  arbitration  '•'■all  demands 
which  either  has  against  the  other,"  the  award  is  a  conclusive  bar  to 
an  action  for  any  demand  subsisting  at  the  time  of  the  submission 
and  award,  even  though  the  plaintitf  show,  in  a  subsequent  action 
for  such  demand,  that  it  was  by  mistake  omitted  to  be  laid  before 
the  arbitrators,  and  was  not  considered  or  decided  upon  by  them.^(l) 

In  general,  where  a  defendant  sets  up  that  the  cause  of  action  is 
barred  by  a  submission  and  award,  the  defence  will  be  good  if  it 
appear  that  the  cause  of  action  came  within  the  scope  of  the  sub- 

(a)  1  Wenrt.  Kep.  326;  7  Mass.  Rep.  399.  (J)  4  T.  R.  146,  and  note:  4  Ksp.  IfiO. 

(b)  Slat.  07,^1.  (e)  12  Johns.  Kep.  311;  15  East  213;   17  Eng. 

(c)  2  T.  R,  645.  C.  L.  Rep.  498;  1  Esp.  377. 


(1)  In  tl>e  case  of  IVhecler  v.  Van  ILniteii,  (\2  JoJais.  liep.  311,)  above  refer- 
red to,  tlie  court  say:  "Wliatevcr  constituted  a  demand  on  one  side  or  the  other, 
was  submitted;  and  if  submitted,  tlie  cases  cited  show  that  the  award  must  be 
final. 

"It  would  be  a  very  dang'erous  precedent,  to  allow  a  part}',  on  a  submission  so 
general,  'of  all  demands  which  either  party  liad  aj^-ainst  the  other,'  intended  to  settle 
every  thing-  between  tiiem,  to  lie  by  and  submit  only  a  part  of  iiis  demand,  and 
then  institute  a  suit  for  the  part  not  broug-lit  before  the  arbitrators.  Tlie  object 
of  the  submission  was  to  avoid  liti.q-ution;  and  neither  party  is  at  liberty  to  withiiold 
a  demand  from  the  cognizance  of  the  arbitrators,  on  such  a  submission,  and  then 
to  sue  for  it. 

"It  is  true,  if  a  person  sues  upon  several  distinct  causes  of  action,  and  submits 
only  a  part  of  them  to  the  juiy,  he  is  not  ])recluded  from  suing-  ag-ain  for  such 
distinct  cause  of  action  as  was  not  passed  ujooii.  In  that  case,  lie  was  not  bound, 
originally,  to  unite  the  ilifl'erent  causes  of  action,  and  therefore  shall  not  be  bar- 
red; but  here  he  bound  himself  to  the  defendant  to  submit  every  demand,  and 
cannot  recede  from  his  agreement." 


§2,(C).]  ARBITRATIONS.  209 

mission,  although  not  presented  nor  acted  upon  by  the  arbitrators.* 
When,  however,  such  matter  is  in  fact  presented  and  submitted  to 
the  arbitrators  upon  which  they  do  not  act,  by  either  allowing  or 
rejecting  it,  and  award  only  as  to  other  matters,  the  award  will,  in 
general,  be  wholly  inoperative  and  void,'' 

We  have  just  seen  in  what  cases  an  award  is  void.  In  an  action 
upon  an  award  or  upon  an  arbitration  bond,  for  not  performing  an 
award,  the  defendant  can  only  avail  himself,  in  his  defence,  of  mat- 
ters which  render  the  award  void.  He  cannot,  therefore,  be  per- 
mitted to  go  back  of  the  award,  and  show  that  the  arbitrators  acted 
unjustly  and  refused  to  hear  testimony,  or  that  he  had  no  notice  of 
the  hearing,  and  did  not  attend.'  His  only  remedy  is  in  a  court  of 
equity.  These  things  might,  to  be  sure,  be  set  up,  in  order  to  get 
the  reference  and  award  made  before  a  justice  set  aside,  as  men- 
tioned in  the  preceding  section,  but  are  not  proper  subjects  of  de- 
fence when  suit  is  brought  on  an  award  or  arbitration  bond,  whe- 
ther such  award  was  made  under  a  reference  to  arbitrators  before 
a  justice,  or  in  any  other  lawful  manner. 

(a)  15  East,  213;  17  Eng.  C.  L.  Rep.  498;  but     (c)  5  Wend.  Rep.  516,  which  overrules  the 

see  5  Mass.  Rep.  334;  9  id.  320.  case  in  6  Cow.  Rep.  103;  see  also  8  Pet. 

(b)  16  East  58;  20  Eng.  C.  L.  Rep.  483.  U.  S.  Rep.  165. 


27 


TITLE  Vll. 


ASSIGNMENT  OF  CLALAIS  NOT  NEGOTIABLE. 


SEC.  I.       WHAT    CLAIMS    ARE    NOT    NEGOTIABLE,   AND  THE  MEANING  OF  THE 
TERM  "CIIOSES  IN   ACTION." 

II.  HOW  CHOSES  IN  ACTION  MAT  BE  ASSIGNED. 

III.  OF    THE    RIGHTS    OF  AN   ASSIGNEE  OF  A  CHOSE  IN  ACTION  AGAINST 

THE  DEBTOR. 

IV.  OF  THE  RIGHTS  OF  THE  ASSIGNEE  AGAINST  THE  ASSIGNOR. 

■  V.      OF  THE   RIGHT    OF    THE    DEBTOR    WHEN    THE    CLAIM    AGAINST    HIM 
HAS  BEEN  ASSIGNED. 
VI.     OF  THE  LIABIUTY  OF  THE  ASSIGNOR  AND  ASSIGNEE  FOR  COSTS. 


Sec.  I. WHAT  CLAIMS  ARE  NOT  NEGOTIABLE,  AND  THE  MEANING  OF  THE 

TERM  "  CHOSES  IN  ACTION." 

A  claim  is  said  to  be  negotiable,  Avhcn  the  law  will  permit  the 
person  to  whom  it  is  assigned  to  sue  upon  it  in  his  oum  name  as  , 
plaintiff. 

A  claim' or  right  to  a  sum  of  money,  for  which  an  action  may  be 
brought,  is  called  a  chose,  or  thing,  in  action;  and  this  chose  in  ac- 
tion may  be  a  bond,  account,  or  in  fact  any  demand  arising  on 
contract,  whether  payable  immediately,  or  due  at  a  future  period; 
"whether  in  or  out  of  suit. 

It  is  a  general  rule,  that  no  chose  in  action  can  be  transferred  or 
assigned  so  as  to  give  to  the  person  to  whom  it  is  assigned  a  right 
to  sue  upon  it  in  his  own  name.  The  only  exception  to  this  rule 
is  in  the  case  of  bonds,  promissory  notes,  and  bills  of  exchange. 
Even  an  assignment  of  these  does  not  give  the  assignee(l)  a  right 


(1)  Assignor  is  tlic  person  \\\\n  transfers  or  assig-ns  an  instrument,  or  other  thing-, 
and  the  assignee  is  the  person  to  whom  the  transfer  or  assignment  is  made.  It  will 
be  observed,  that  the  terminations  or  and  ke  are  often  used  to  designate  the  two 
parties  to  a  transaction.  The  or  has  an  active,  and  the  ee  a  passive  signification; 
thus:  the  grantt/r  of  a  deed,  is  the  one  who  does  the  act  of  granting;  and  so  the 
mortgagor  in  a  mortgage,  the  obligor  in  a  bond,  and  the  covenantor  in  a  sealed 
contract,  are  the  persons  who  severall}'  do  the  act  of  mortgaging,  &c. :  and  the 
grantee  of  a  deed,  the  mortgagee  of  a  mortgage,  the  obligee  of  a  bond,  and  the  cov- 
enantee in  a  contract  under  seal,  are  the  persons  to  whom  the  deed,  mortgage. 


\Pt.  2,  Tit.  7,  §2,  3,]  ASSIGNMENT  OF  CHOSES  IN  ACTION.  21 1 

to  sue  upon  them  in  his  own  name,  unless  they  contain  all  the  re- 
quisites hereafter  pointed  out  for  such  instruments. (1) 

In  the  following  remarks,  the  term  clioses  in  action  will  be  used 
to  designate  claims  or  debts,  not  negotiable. 


Sec.  II. — HOW  choses  in  action  may  be  assigned. 

No  particular  form  is  required  for  the  transfer.  Indeed,  the  mere 
delivery  of  a  bond,  covenant,  note,  account,  or  other  claim,  for  a 
valuable  consideration,  is  a  valid  assignment,  if" such  delivery  was 
intended  by  the  parties  as  a  ti'ansfer.*  So,  a  delivery  of  a  note  to 
receive  its  amount  and  apply  to  a  debt,  is  an  assignment  of  it.*'  A 
judgment  may  be  assigned  for  a  valuable  consideration  either  ver- 
bally or  by  writing,  without  seal,*^  or  even  by  a  delivery  of  the  exe- 
cution to  the  assignee,''  if  such  act  was  intended  as  an  assignment. 

An  assignment  indorsed  on  a  note,  and  the  note  retained  by  the 
assignor  until  his  death,  without  proof  of  any  sale  or  contract  foj:  the 
note,  vests  no  interest  in  the  assignee,®  even  though  the  executor 
or  administrator  of  the  assig4;ior  afterwards  deliver  the  claim  to  the 
assignee. 


Sec.    III. OF    THE    RIGHTS    OF    AN    ASSIGNEE    OF   A   CHOSE    IN    ACTION 

against  THE  DEBTOR. 


The  assignee  of  a  chose  in  action,  as  has  been  before  stated,  can- 
not sue  upon  it  in  his  own  name.  But  if  the  debtor  has,  for  a  valid 
consideration,  expressly  promised  to  pay  him,  he  may  sue  upon  that 
promise  in  his  own  name,=  even  where  the  instrument  assigned  is  a 
sealed  one."" 

Although  the  assignment  of  the  claim  to  the  assignee  be  made 
by  delivery  only,  this  will  give  him,  as  incident  to  the  assignment, 
a  risrht  to  use  the  name  of  the  assignor/  in  a  suit  ao-ainst  the 
debtor. 

(«)  17  Johns.  Rep.  284;  13  Mass.  Rep.  304;  (e)  2  Ohio  Rep.  GO. 

19  Johns.  Rep.  95;  15  Miiss.  Rep.  481.  (g)  10  Mass.  Rep.  316;   15  1(1.387;  Wright's 

(b)  lCaine'sRep.363;  3  Johns.  Rcp.71,72;  Rep.  434. 

12  Johns.  Rep.  346.  (h)  4  Cow.  Rep.  13. 

(c)  19  Johns.  Rep.  342.  (i)  13  Mass.  Rep.  304;  4  I<1.  508;  Wright's 
(<1)  15  Mass.  Rep.  481.  Rep.  737. 

bond,  or  covenant,  Is  made:  So,  the  vendor  of  .cjoods,  is  tlic  person  \\\\o  makes 
tlie  sale,  and  tlie  vendee  is  the  person  to  whom  tlic  sale  is  made;  the  \yX\\or  of  goods 
is  tlie  jferson  wlio  lets  them  to  hire,  and  the  bailee  is  the  person  to  whom  the  goods 
are  hired;  tlie  promisor  in  a  note  is  the  person  wlio  makes  the  promise,  &c.  In 
these  cases,  and  generally,  it  will  be  found  that  the  termination  oii  designates  the 
doer,  promisor,  or  giver;  and  the  termination  ee,  the  person  to  or  for  whom  tJie 
act  is  done. 

(1)  See  Title  31. 


212  ASSIGNBIENT  OF  CIIOSES  IN  ACTION.        [PrL  2.  Tilk  7, 

After  notice  of  the  nssiiinmciit,  the  debtor  cannot,  in  general, 
make  any  new  arrangement  with  the  assignor,  so  as  to  prejudice 
the  rights  of  the  assignee.  Therefore,  if  the  debtor  pay  the  assign- 
or," oV  procure  his  release  of  the  debt,''  after  notice  of  the  assign- 
ment, it  will  not  alfect  the  rights  of  the  assignee. 

The  declarations  of  the  assignor,  made  after  the  assignment,  can- 
not be  given  in  evidence  by  the  debtor  so  as  to  prejudice,  in  any 
way,  the  rights  of  the  assignee.*^ 

\\'herc  the  delator,  having  notice  of  the  intended  assignment  pre- 
vious thereto,  makes  no  objection,  he  will  l>e  considered  as  consent- 
ing to  the  assignment  and  as  waving  his  right  to  any  set  oU"  in  an 
action  brought  against  him  for  the  benefit  of  the  assignee.*^ 

A  special  notice  of  the  assignment  actually  served  on  the  debtor, 
need  not  be  shown;  but  it  is  enough,  if  from  the  facts  and  circum- 
stances, it  may  be  fairly  presumed  that  the  debtor  had  positive  no- 
tice of  the  assignment." 

It  has  been  decided,  that  if  A  owes  you,  and  before  the  com- 
mencement of  a  suit  to  recover  the  debt,  he  ac(iuircs  by  assignment 
a  chose  in  action  against  you,  he  may  set  this  oil' against  your  claim, 
although  he  could  not  sue  you  upon  it  in  his  own  namc.s  Tiiis  ques- 
tion has  not  been  fully  settled,  in  any  reported  case,  by  the  supreme 
court.** 


Sec.  IV.  —  OF  the  rights  of  the  assignee  of  a  chose  in  action 

AGAINST  THE  ASSIGNOR. 


If  the  assignor  falsely  and  knowingly  misrepresents  the  pecuni- 
ary circumstances  of  the  debtor,  and  thus  actually  deceives  the  as- 
signee, he  may  immediately  return  the  claim  and  sue  the  assignor 
for  the  goods  or  debt  for  which  the  claim  was  assigned.(l)  Such  a 
fraud  so  far  puts  an  end  to  the  contract,  that  the  assignee  will  have 
the  above  mentioned  remedy,  even  if  he  expressly  agreed  to  take 
the  claim  at  his  own  risk.'  So,  the  assignee  has  the  same  remedy, 
if  the  assignor  knew  the  claim  to  be  unfounded,  and  concealed  it 
from  the  assignee.'' 

When  there  is  an  understanding  lietween  the  assignor  and  as- 
signee as  to  the  risk  of  the  insolvency  of  the  debtor,  and  there  has 

(a)  3  Johns.  Rep.  425.  (g)  8  Johns.  Rep.  118;  2  BayV  Rep.  481;   1  T.  R. 

(b)  13  Mass.  Rep.  304;    1  Johns.  Ca.  411;  621.  623;  3  Rinney,  135;  6  Cow.  Rep.  693; 

11  Johns.  Rep.47;  Wright's  Rep.  35.  9Covv.  297,  S.C.;  5  Co\v.23I;  5  Wcn(1.346; 

(c)  10  AVcnil.  Rep.  675.  7  Taunt.  237.  243:  but  see  16  East,  36;  4  B. 

(d)  16  Mass.  Rep. 397.  and  A(lol.745. 

(e)  12  Johns.  Rep.  343;  9  Id.  64;  Wright's  (h)  Wriul.i's  Rep.  281. 

Rep.  501.  (i)  6  Jolins.  Rep.  110. 

(k)  4  East's  l!ep.  147. 


(1)  a  Johns.  lirp.  110;  5  Td.  73;  1.5 /r/.  475;  8  Id.  79;  1  Esp.  Ca.  43i);  2  Id.  522. 
See  the  law  in  relation  to  a  IVaiicl  in  the  quality  ol'g'oods  sold,  which  is  fully  stated 
in  Part  2,  Title  32,  §G.  The  same  ndcs  apply  to  tlie  assignment  of  choses  in  ac- 
tion.    3  Yeate's  Rep.  531;  10  Mass.  Rep.  245. 


§3,  4.]  ASSIGNMENT  OF  CHOSES  IN  ACTION.  213 

been  no  fraud  nor  misrepresentation,  such  agreement  will  control 
the  rights  of  the  parties. 

It  is  not  unusual,  however,  for  persons  to  make  an  arrangement 
in  relation  to  the  transfer  of  a  claim,  and  hand  the  same  over,  with- 
out endorsement,  and  without  any  express  understanding  as  to  who 
shall  bear  the  loss  in  case  the  claim  is  not  paid  by  the  debtor.  In 
such  cases,  where  nothing  is  said  about  the  risk  by  either  party,  if 
the  assignment  was  made  in  exchange  for  property,  it  will  be  pre- 
sumed in  the  absence  of  all  proof  to  the  contrary,  that  the  assignee 
took  the  claim  at  his  own  risk;  but  if  assigned  to  apply  to  a  prior 
existing  debt,  the  presumption  will  be  otherwise,  and  the  assignee 
may  sue  for  the  prior  debt.^  Thus:  if  you  sell  me  a  horse  or  other 
property  for  an  account  or  other  chose  in  action  against  S,  and  it 
is  not  determined  between  us  at  the  time,  at  whose  risk  the  claim  is 
taken,  and  there  is  no  fraud  or  misrepresentation  on  my  part,  as  to 
the  claim  or  the  solvency  of  S,  and  S  is,  at  the  time,  and  continues 
insolvent,  it  Avill  be  your  loss.  The  claim  was  received  in  exchange 
for  the  property.  But  if  I  owe  you  a  debt  and  afterwards  deliver 
to  you  a  claim  against  S,  it  will  be  presumed,  unless  the  contrary 
appear  from  the  proof,  that  the  claim  against  S  was  not  received 
by  you  in  payment  and  discharge  of  the  debt,  but  collaterally,  to 
be  applied  to  its  payment  when  collected,  and  consequently  you 
may  sue  and  recover  your  debt  from  me.* 

This  implied  agreement,  however,  as  has  already  been  said,  is  like 
all  others,  liable  to  be  controlled  by  the  contract  of  the  parties. — 
Thus:  If  I  hold  the  note  of  A,  and  am  indebted  to  you,  and  you 
receive  my  claim  against  A,  in  discharge  and  payment  of  my  debt 
to  you, — if  this  be  fairly  done,  and  I  do  not  indorse  the  note  of  A, 
my  debt  will  be  paid,  and  you  can  only  look  to  A,**  So,  where  the 
defendant  to  whom  a  negotiable  note  w^as  payable,  indorsed  it,  in 
these  words,  to  the  plaintift^ — "For  value  received,  I  sell,  assign, 
and  guaranty  the  payment  of  the  within  note  to  [the  plaintiti']  or 
bearer," — it  was  decided  by  the  court  that  this  w^as  aii  ahsohite  and 
unconditional  engagement,(l)  that  the  person  who  executed  the  note 
should  pay  the  note  when  due,  or  that  the  defendant  would  pay  it 
himself;  and  that  the  plaintiff  was  not,  therefore,  bound  to  prove  a 
demand  of  the  maker  and  notice  of  non-payment,  as  in  case  of  an 
ordinary  indorsement  of  negotiable  instruments,'^ 

If  the  assignor,  when  he  transfers  a  claim,  signs  his  name  in 
blank,  on  the  instrument,  it  is  presumed,  unless  the  contrary  ap- 
pear by  proof,  that  he  intends  to  be  responsible  for  the  payment  of 
the  claim,  and  in  that  case  the  assignee  may  fill  up  the  indorsement 

(a)  11  Johns.  Rep.  410.  414;   15  Id.  241;    15  East,  12;    1  Salk.  124;   3  Wend.  Rep.  66;   8  Pick. 
Rep.  522;  6  Mass.  Rep.  322;  17  id.  1;  8  Wend.  Rep.  535. 
(b)  7  Mass.  Kep.  286.  (c)  20  Jolins.  Rep.  365. 


(1)  An  absolute  promise  is  one  wliich  bus  no  condition  annexed  to  it,  by  the  hap- 
penin;^  or  not  happenini^  of  which,  its  performance  will  be  excused.  A  condi- 
tional promise  has  a  condition  annexed  to  it  wliicli  may  forever  prevent  a  breach 
of  the  promise. 


214  ASSIGNMEFT  OF  CHOSES  IN  ACTION.  [P7^L  2,    Title  7, 

with  an  absolute  and  unconditional  promise — thus:  "For  value  re- 
ceived, 1  unilertakc  to  pay  the  money  within  mentioned  to"  the 
assiirnec:  And  upon  such  endorsement  the  iissij^nec  may  sue  the 
assii^nor  for  the  amount  of  the  claim.(l) 

\\'hen  a  claim  is  so  assigned  as  to  make  the  assignor  condition- 
ally liable,  either  for  the  original,  debt  upon  which  the  assignment 
was  received,  or  conditionally  liable  upon  the  assignmeut  itself,  th* 
assignee  will  discharge  the  assignor,  if  he  neglect  or  delay,  to  the 
injurvofthe  assignor,  and  for  an  unreasoimble  time,  to  demand 
payment  from  the  person  against  whom  the  claim  assigned  exists.* 
The  assignee  is  not,  in  general,  bound  in  such  case  to  observe  the 
same  promptness  in  making  demand  of  payment  from  the  debtor  as 
is  required  of  the  holder  of  a  negotiable  instrument;  nor  need  he, 
before  he  proceeds  against  the  assignor,  sue  such  debtor,  unless 
that  was  the  agreement  between  him  and  the  assignor.^ 

If  the  claim  assigned  turn  out  to  be  a  forgery,  the  assignor, 
though  ignorant  of  the  fact  at  the  time  of  the  assignment,  (whether 
he  agreed  to  be  answerable  to  the  assignee  for  the  payment  of  the 
claim,  or  not.)  will  be  liable  for  the  original  debt^  goods  or  money 
given  for  the  claim. (2) 

It  is  a  common  practice  when  a  suit  is  brought  on  a  cho«e  in  ac- 
tion which  has  been  assigned,  to  name  the  person  on  the  docket,  for 
whose  use  the  plaintilfsues,  —  thus:  "A.  B.  for  the  use  of  E.  F.,  v. 
C.  D."  In  such  case,  A.  B.,  to  whom  the  claim  was  originally  due, 
is  the  plaintiff',  and  E.  F.,  the  assignee,  being  thus  named,  does  not 
become  a  party  to  the  suit.  It  is  not  necessary  to  thus  mention  the 
assignee.  If  mentioned  in  the  summons,  &c.  it  would  be  notice  to 
the  defendant,  justice,  constable,  and  others,  from  the  time  they 
saw  the  parties  thus  named,  that  E.  F.,  (the  assignee,)  and  not 
A.  B.,  was  the  reputed  owner  of  the  claim,  to  whom  the  same 
should  be  paid.  Even  when  the  assignee  is  thus  mentioned  on  the 
docket  and  in  the  process,  the  plaintiff'  need  not  prove  that  the 
claim  has,  m  fact,  been  assigned  to  E.  F.,  or  to  any  one.*^  V/here, 
however,  the  defendant  sets  up  a  defence  which  can  only  be  defeat- 
fa)  7  Pet.  U.  S.  Rep.  128;  12  Id.  £03.  (c)  2  Ohio  Rep.  25. 
(b)  6  Cow.  Rep.  624;  12  Pet.  503;  8  Wend.  403. 


(1)3  3I(iss.  Hep.  274;  12  Id.  52;  8  jrcird.  Hep.  421.  It  woultl  seem  tbat  in  such 
case,  where  the  contract  of  tlie  guarantor  is  absohite  and  iincondition:il,  no  de- 
mand ujion  the  debtor  need  be  made,  and  no  notice  need  be  given  to  tiie  assignor, 
of"  non-payment  by  tlie  debtor,  in  order  to  render  tlie  iissignor  liable.  /«/.;  20 
Johns.  Hep.  36.5;  7  Peters'  U.  S.  Rep.  127. 

(2)  'i  Johns.  Rep.  4.55;  15  Id.  210;  4  Tiiiint.  288;  1  Enp.  Cn.  3.  But  see  G 
Jlliw-s.  Jiep.  321,  wliere  it  is  determined  tiiat  if  A  sells  goods  to  15,  and  agrees  to 
receive  certain  promissory  notes  in  payment — if  the  notes  are  afterwards  discov- 
ered to  be  forged,  and  P.  was  ignorant  of  the  fact,  A  cannot  afterwards  resort  to 
B  for  liie  payment  of  the  goods,  unless  he  has  indorsed  them.  But  if  the  debt 
for  which  the  forged  notes  are  delivered  was  originally  pa)  able  in  money,  then 
the  assignment  of  the  notes  for  the  accommodation  of  the  assignor  does  not  pay 
the  debt.  It  is  believed,  however,  that  the  general  rule  laid  down  in  the  text  is 
more  just  and  reasonable  than  tlie  one  established  in  Massachusetts. 


^4,5.]  ASSIGNMENT  OF  CHOSES  IN  ACTION,  216 

ed  in  consequence  of  the  assignment,  it  will  then  be  necessary  to 
prove  the  assignment;  which  the  assignee  may  be  permitted  to  do, 
whether  he  is  named  in  the  docket,  or  not.  Thus:  if  the  defendant 
set  up  in  his  defence,  payment,  or  the  like,  made  to  the  assignor, 
after  notice  given  him  of  the  assignment,  the  assignee  ought  then 
to  prove  that  the  assignment  was  made  and  notice  given  to  the 
debtor  before  such  payment. 


Sec.  V. — OF  the  right  of  the  debtor  where  a  chose  in  action 

HAS  been  assigned. 


Where  the  assignee  of  a  chose  in  action  sues  upon  it  in  the  name 
of  the  assignor,  the  defendant  is  entitled  to  set  up  any  defence  or 
facts  against  a  recovery,  which  existed  before  he  had  jiotice  of  the  as- 
signment; and  this  he  may  do  to  the  same  extent  and  in  the  same 
manner  as  if  the  claim  had  never  been  assigned.*  A  debt,  there- 
fore, due  the  defendant  from  the  assignor,  which  was  held  before 
notice  of  the  assignment,  and  before  the  commencement  of  the  suit, 
may,  in  such  case,  be  allowed  as  a  set  ofl';  but  not  one  that  is  ac- 
quired afterwards.''  Thus:  if  A  owe  you,  and  you  owe  him  a  debt, 
and  afterwards  you  assign  your  claim  to  C,  \\4io  sues  A  in  your 
name,  A  may  set  off  what  you  owed  him,  or  any  debt  which  he  ob- 
tained against  you,  before  notice  of  the  assignment. 

It  has  been  determined  by  respectable  and  authoritative  courts, 
that  where  a  suit  is  brought  in  the  name  of  an  assignor,  the  defend- 
ant may  set  off  a  debt  due  him  from  the  person  for  whose  use  or 
benefit  the  suit  is  brought.*^ 

I  do  not  know  whether  this  question  can  be  considered  as  settled 
or  not,  by  the  supreme  court  of  the  State  ;'^  but  if  settled,  it  is 
against  the  allowance  of  such  set  off.  At  all  events,  if  a  set  off  can 
be  allowed,  and  the  amount  due  to  the  defendant  from  the  person 
for  whose  use  the  claim  is  prosecuted,  exceed  the  amount  of  the 
claim  sued  upon,  the  justice  should  note  on  his  docket  the  amount 
of  tlie  two  and  the  amount  allowed  as  a  set  off'  to  balance  or  liqui- 
date the  claim  sued  upon,  and  render  judgment  for  the  defendant 
for  costs  only.(l) 

(a)  20  Johns.  Rep.  144.  Wend.  Kcp.  346.     If  a  cestui  que  trust  is 

(b)  12  Mass.  Rep.  195;  12  Jolins  Rep.  343;  3  ciiliiled  to  the  privilege  of  set  oil',  (which 
Coweri's  Kep.  353.  is  a  disputed  question,)  I  can  sec  no  reason 

(c)  See  1  Wash.  C.  C.  Rep.  424:  11  Wend.  why  a  set  olf  is  not  admissible  against  hiiu. 

504;  9  Cow.  Rep.  299;  8  Jolins.  Rep.  152;  Sec  an/e  page  212. 

3  Yeate's  Rep.  2ti7;  1  T.  R.  622,  623;  5        (d)  Sec  Wright's  Rep.  281. 


(1)  See  further  in  relation  to  set  off  and  the  general  rules  relating  thereto,  Part 
2,  Title  33. 


216  ASSIGNMENT  OF  CHOSES  IN  ACTION.    [Pr/.  2,  Tithl^^G.'] 


Sec.   YI. — of  the  Lr ability  of  the  assignor  and  assignee  for 

COSTS. 


The  name  of  the  assignor  is  made  use  of  as  plaintifl'  when  a  suit 
is  brought  upon  an  assigned  chose  in  action,  and  in  such  case  if 
judgment  is  rendered  in  favor  of  the  defendant  for  costs,  it  is  of 
course  rendered  against  the  assignor,  and  the  execution  must  be 
against  him,*  even  though  the  assignee  agreed  with  the  assignor  to 
pay  the  costs.  Where  tlic  assignor  is  insolvent,  the  costs  may  be 
afterwards  recovered  by  the  persons  to  whom  they  are  due,  l)y  sepa- 
rate suits  against  the  assignee  for  wliose  use  and  by  whose  direction 
the  suit  is  prosecuted.'' 

(a)  2  Wend.  Rep.  245.  (1))  Wrisht's  Rep.  375;  7  Cow.  Rep.  650,  2  Iil.  460;  20  Jolins. 

Rep.  47;  11  Wend.  Rep.  570. 


TITLE  VIII. 


ATTACH.AIENT.(l) 

SECTION    I,  IN  WHAT  CASES  AN  ATTACHMENT  MAT  ISSUE. 

II.  OF  THE  AFFIDAVITS  OF  THE  CREDITOR  TO  OBTAIN  PROCESS. 

III.  OF  THE  ISSUING  OF  THE  WRIT,  AND  THE  NATURE  THEREOF. 

IV.  OF  THE  PROCEEDINGS  OF  THE  PLAINTIFF  AFTER  THE  WRIT  IS 

ISSUED  AND  BEFORE  TRIAL. 

V.  OF  THE  SERVICE  AND  RETURN  OF  THE  ATTACHMENT    WHERE 

NO  ONE  PREFERS  A  CLAIM  TO  THE  PROPERTY  ATTACHED. 

VI.  OF  THE  MODE  OF  PROCEEDING  AND  FORMS   WHERE    PROPERTT 

ATTACHED  IS  CLAIMED  BY  A  THIRD  PERSON. 

VII.  OF     PROCEEDINGS     AGAINST      THE      GARNISHEE,     AND     FORMS 

THEREFOR. 

VIII.  OF  PROCEEDINGS  ON  THE  WRIT   OF    AXXACHMENT    AFTER    ITS 

RETURN. 

IX.  FORMS    OF    AFFIDAVITS    FOR  A  WRIT,    AND    FOR    PROCEEDINGS 

AGAINST  A  GARNISHEE. 

X.  FORM  OF  A  WRIT  OF  ATTACHMENT. 

XI.  FORM  OF  A  WARRANT  AGAINST  A  GARNISHEE. 

XII.  FORM  OF  NOTICE  OF  THE  ISSUING  OF  AN  ATTACHMENT. 

XIII.  FORMS  OF  RETURNS  TO  AN  ATTACHMENT,  AND  THE  INVENTO- 

RY AND  APPRAISEMENT. 

XIV.  FORM    OF  BOND  TO  A  CONSTABLE    FOR    THE    RE-DELIVERY    OF 

PROPERTY. 

XV.  DOCKET  ENTRIES  IN  ATTACHMENT. 


Sec.    I. IN   WHAT  CASES  AN  ATTACHMENT  MAY  ISSUE. 

Atlachment  is  a  proceeding  by  which  the  property  and  effects  of 
an  absconding  debtor,  or  a  non-resident  of  the  county  where  the 
attachment  is  issued,  are  subjected  to  seizure  and  sale  for  the  pay- 
ment of  debts. 

From  the  general  tenor  of  the  statute  regulating  the  proceeding 
by  attachment,"  it  would  seem  that  an  attachment  cannot  be  issued 

(a)  Ptat.  80. 

(1)  As  to  attacliments  against  a  witness,  see  from  pag'e  54  to  56,  and  pages  66» 
88  and  89.     As  to  contempts  of  bystanders,  &.C.,  see  Part  B,  Title  13. 
28 


218  ATTACHMENT AFFIDAVIT.  [P/t.  2^   Title  B^ 

to  recover  uncertain  damages  for  an  injury  done  to  the  person  or 
property  of  another.  Tlio  remedy  seems  only  applicable  where  the 
relation  of  debtor  and  creditor  subsists,  and  to  cases  arising  out  of, 
founded  upon,  or  sounding  in  contract. 

The  party  sued  under  the  statute,  must  be  either  an  absconding 
debtor,  at  tlic  time  the  writ  issued,  or  a  non-resident  of  the  county 
in  wiiich  the  proceedings  are  commenced.* 

A  creditor  is  not  authorized  to  resort  to  process  of  attachment 
against  joint  debtors,  unless  they  are  all  non-residents,  or  have  ab- 
sconded. So  long  as  one  joint  debtor  or  contractor  remains  within 
the  jurisdiction,  who  can  be  personally  served  with  process,  the 
creditor  must  seek  his  remedy  by  another  form  of  action.'' 


Sec.    II. OF    THF.  AFFIPAVITS  OF  THE  CREUITOR  TO  PJlOCUIiK  PROCESS. 


No  writ  of  attachment  cnn  he  issued  by  a  justice  until  tlie  cred- 
itor, his  agent,  or  attorney,  files  an  affidavit,  setting  forth  that  the 
debtor  absconds  to  the  injury  of  such  creditor,  or  that  the  debtor  is 
not  a  resident  of  the, county. *(1)  If  the  creditor  intends  to  obtain 
property,  in  the  hands  of  a  third  person,  belonging  to  the  debtor,  or 
intends  to  make  a  third  person  accountable  to  him  for  a  debt  which 
he  owes  the  defendant,  either  tlie  creditor,  or  some  other  credible 
person,  must  mak-e  ont.li  or  affirmation  that  he  has  good  reason  to 
believe,  and  does  verily  believe,  thai  such  third  person  is  indebted 
to,  or  hath  property  in  his  possession  belonging  to  the  defendant  in 
attachment.  The  property  must  be  described  in  the  affidavit.'^(l) 
The  person  thus  indebted  to,  or  having  possession  of  the  property 
of  the  defendant,  is  called  the  garnishee. 

If  the  plaintiff  makes  oath  or  affirmation  before  the  justice,  that 
he  is  in  fear  such  garnishee  will  abscond  before  judgment  can  be 
had,  and  that  he  believes  the  garnishee  hath  moneys,  goods,  chattels, 
or  eflects,  in  his  possession,  or  is  indebted  to  the  defendant, (1)  the 
justice  may  issue  a  warrant  against  the  garnishee,  or  other  person 
holding  property  of  the  defendant.'^(2) 


Sec.    III. OF  THE  ISSUIXG  OF  THE  AVRIT,  AND  THE  NATURE   THEREOF. 

Upon  the  creditor  filing  his  affidavit  that  the  debtor  absconds,  or 
is  not  a  resident  of  the  county,  as  above  mentioned,  the  justice  issues 
an  attachment  under  his  hand  and  seal,  directed  to  any  constable  of 

(a)  Stat.  80,  ^1.  (c)  Stat.  83,  $12. 

(b)  4  Obio  Rep.  154.  (d)  Id.  84,  $14. 


(1)  For  the  fonii  of  the  affidavit,  see  ^9,  of  this  Title. 

(2)  For  the  form  of  the  warrant,  see  §  1 1,  of  this  Title. 


§2,3,4,3.]  ATTACHMENT THE  WRIT.  219 

his  proper  county,  commanding  him  to  attach  the  property  and  ef- 
fects of  the  debtor,  and  return  the  writ  within  twenty  days,^(l) 

If  an  affidavit  has  been  filed  by  the  creditor,  charging  any  person 
as  garnishee,  a  copy  of  such  affidavit  sliould  be  handed  over  to  the 
constable  with  the  writ. 

The  justice  must  indorse  upon  the  back  of  the  writ  the  amount  of 
the  sum  claimed  and  costs,  that  the  defendant,  or  any  one  for  him, 
may  pay  the  same.'' 


Sec.  IV. — OF  PROCEErrNGs  by  the  plaintiff  afteh  the  writ  is  is- 
sued AND  before  trial. 


The  person  taking  out  the  writ  of  attfichnient  must  forthwith  ad- 
vertise in  three  of  the  most  public  places  in  the  proper  county,  and 
in  some  newspaper  printed  in  the  county,  if  a  newspaper  be  printed 
therein,  (and  if  no  paper  be  printed  in  such  county,  such  notice 
must  be'  advertised  in  some  paper  in  general  circulation  in  the  coun- 
ty.) that  an  attachment  has  been  taken  out  from  such  justice,  against 
such  absent  or  absconding  debtor:  and  the  plaintiff  must  transmit 
to  the  justice  a  copy  thereof,  and  produce  to  him  satisfactory  evi- 
dence of  having  advertised,  as  above  mentioned,  thirty  days  previ- 
ous to  entering  judgment,''(2) 


Sec.  V. OF  THE  SERVICE  AND  RETURN  OF  THE  ATTACHMENT,  WHERE 

NO  ONE  PREFERS  A  CLAIM  TO  THE  PROPERTY  ATTACHED. 


The  constable  must  execute  the  writ  of  attachment  by  going  to 
the  place  where  the  defendant's  property  may  be  found,  and  in  the 
presence  of  at  least  two  credible  persons,  declaring  that  by  virtue 
of  the  writ  to  him  directed,  he  attaches  the  goods,  chattels,  rights, 
credits,  moneys,  and  effects,  of  the  defendant,  at  the  suit  of  the 
plaintiff  in  attachment.  He  must  also  take  to  his  assistance,  two 
respectable  freeholders,  and  administer  the  proper  oath(3)  to  them, 
who,  with  the  constable,  must  make  a  true  inventory  and  appraise- 
ment of  the  property  attached.  The  inventory  must  be  signed  by 
the  freeholders,  and  constable,  and  returned  with  the  writ.     The 

(a)  Stat.  80,  $1.  (b)  Id.  86,  $23.  (c)  IJ.  81,  $3. 


(1)  For  the  form  of  tlie  writ  of  attacliment,  see  §10  of  this  Title. 

(2)  For  the  form  of  ll»e  notice,  see  §12,  of  tliis  Title. 

(3)  Tiie  oatii  may  be  in  tiie  form  follawing-. 

Yon,  and  cacli  of  yon,  do  solemnly  swear,  in  tlie  presence  of  Almighty  God, 
the  searcher  of  all  liearts,  that  you  will  make  a  true  inventory  and  appraisement  of 
the   property  of  C D ,  attached  by  me,  at  the  suit  of  A 13 -. 


220  ATTACHMENT SERVIC  K  OF  WRIT.  \^P I'l.  %   Title  Q^ 

constable  must,  indorse  on  tlie  writ  the  time  find  manner  ofse'rving 
the  same,  and  subscribe  his  name  there1o/(l)  His  jurisdiction  on 
the  attachment  is  co-extensive  with  the  county. 

A  person  who  holds  goods  of  the  debtor,  in  })led<i;e,  or  has  a  lien 
upon  them  lor  a  debt,  would  not,  it  is  believed,  be  bound  to  deliver 
them  up,  unless  the  plaintilF  in  attachment  paid  or  tendered  the 
amount  due.(2)  The  money  paid  by  the  plaintilF  in  such  case, 
could  be  adjusted  as  other  debts,  by  the  justice.  The  levy  cannot 
aflect  the  lien.''  If  the  person  who  hns  the  lien  will  consent  to 
deliver  up  the  goods,  they  may  be  levied  upon  and  sold  by  the  con- 
stable, subject  in  the  hands  of  the  purchaser  to  the  lien. 

But,  in  general,  property  attached  must  be  taken  into  the  care  of 
the  constable,  and  he  will  be  responsible  for  it,  unless  the  person  in 
whose  possession  or  custody  the  property  is  found,  will  execute  a 
bond  with  two  good  and  sufficient  sureties  wilhin  the  county,  in 
double  the  appraised  value  of  the  property,  conditioned  that  such 
property,  or  the  appraised  value  thereof,  shall  be  forthcoming  to 
answer  the  judgment  on  the  attachment.'(3)  If  the  property  be 
not  forthcoming,  the  constable  will  be  liable  to  the  phiintiff  in  at- 
tachment or  other  person  interested,  for  the  value  of  the  property, 
and  the  constable  has  his  remedy  by  suit  on  the  bond. 

The  property  attached  is  kept  without  sale,  in  such  manner  as  the 
justice  shall  direct,  for  at  least  three  months;  unless  it  is  live  stock 
or  of  a  perishable  nature;  in  which  case  it  must  be  sold  in  a  reason- 
able time  after  the  rendition  of  judgment  in  attachment,  on  ten  days 
previous  notice  being  given,  as  in  other  cases.''(4) 

When  the  property,  or  any  part  thereof,  is  lost  by  unavoidable 
accident,  the  justice,  upon  sufficient  proof  being  made,  may  remit 
the  value  to  the  constable,''  or  to  the  person  who  is  bound  to  re- 
deliver it  or  its  value.*^ 

If  there  has  been  a  proper  affidavit  filed,  that  a  person  or  persons 
in  the  affidavit  mentioned,  are  indebted  to  or  have  possession  of 
property  belonging  to  the  defendant,  the  constal)le  should  go  to  such 
persons,  (who  are  called  garnishees,)  and  if  they  deliver  up  the  pro- 
perty, it  should  be  taken  and  inventoried  as  above  mentioned. 

If  the  constable  cannot  come  at  the  property  of  the  defendant 
in  the  hands  of  a  garnishee,  or  if  it  appear  from  the  affidavit  that 
such  person,  or  any  other  therein  named,  is  indebted  to  the  defen- 
dant, in  either  event  the  constable  must  summon  such  person  by 

(a)  Slat.  80,  $2.  (c)  Stat.  81,  $4. 

(b)  Id.  85,  $21.  (d)  Id.  8j,  $17. 


(1)  Jj'or  the  form  of  the  inventory  and  reUirn,  .sec  ■§13,  of  this  Title. 

(2)  The  rul»s'stated  on  page^  148,  jn  relation  to  liens,  may  be  applicable  to  at- 
tachments. 

(3)  For  the  form  of  the  bond,  see  §14,  of  this  Title. 

(4)  As  to  the  form  of  notice  and  sales  in  other  cases,  see  page  155. 


§5,  6.]  ATTACHMENT CLAIMANT.  221 

leaving  with  him  or  at.  his  place  of  residence,  a  copy  of  the  writ  of 
attachment  and  a  copy  of  the  affidavit,  together  with  a  written  no- 
tice to  such  garnishee  to  appear  before  the  said  justice  within  five 

If  a  warrant  is  issued  against  the  garnishee,  his  body  is  taken, 
and  the  warrant  returned  in  the  same  manner  as  a  capias. (2)  If  it 
appear,  from  the  return  of  the  writ,  that  the  amount  due  the  plain- 
tiff, and  costs,  have  been  paid,  the  justice  must  enter  judgment  of 
nonsuit,*^ 


Sec.    VI. OF  THE  MODE  OF  PROCEEDING  AND  FORMS  WHERE  PROPERTT 

ATTACHED  IS   CLAIMED  BY  A  THIRD   PERSON. 


If  the  goods  attached  are  claimed  by  any  person  as  his  property, 
he  must,  within  ten  days  after  the  levy,  give  notice  in  writing  to  the 
justice  who  issued  the  attachment,  setting  forth  therein  the  particu- 
lar items  of  the  property  which  he  claims, (3)  whereupon  the  justice 
must  make  out  in  writing,  under  his  hand  and  seal,  and  deliver  to  the 
constable  a  notice,  setting  forth  the  name  of  the  claimant,  the  pro- 
perty claimed,  and  the  dny  and  place  at  v.diich  the  right  thereto  will 
be  tried.(4)  The  constable  must  deliver  a  copy  of  this  notice  to  the 
plaintiff  in  attachment,  his.  agent  or  attorney,  or  leave  a  copy  of  it 
at  his  usual  place  of  abode,  at  least  three  days  before  the  day  of  trial,^ 
If  the  plaintifi'  is  not  in  the  county,  and  has  neither  an  agent  nor  a 
place  of  abode  therein,  no  notice  will  be  necessary. 

(a)  Stat.  83,  $12.  (b)  Id.  56,  <\2.1.  (c)ld.  8I,«5. 


(1)  Tlie  notice  mtiy  be  indorsed  on  the  b.ick  of  t'.ie  copj'  of  the  writ,  thus; 
To  E F . 

You  are  hereb}'  notified  to  appear,  on  the day  of ,  IS — ,  at  —  o'clock 

- —  M.,  before  the  within   named  justite,  at  hi.s  office,  to  answer  tiie  matter.s  men- 
tioned in  a  writ  of  attachment,   of  which  the  within  is  a  true  cop)-. 

I J — '—,  Constable, 

June  1;  1846.  of Township. 

(2)  For  tlie  mode  in  which  a  capias  is  served,  and  the  form  of  the  return,  see 
from  pag'c  34  to  37. 

(3)  This  notice  can  be  readily  made  from  the  form  in  the  next  note. 

(4)  Form  of  the'notice  to  the  Cons'able. 
Attachment. 


A B ,    -) 


C D .   5 

To  I J ,  Constable. 

K I, claims   tlie   following-  property,  attached  in  tjie  above  case,   viz: 

[here  describe  the  nrllrlcs  rluimed:]  trial  will  I)e  liad  of  his  rig-ht  to  the  same,  on  the 

day  of ,  at  my  office,  in township, countj-,  at  —  o'clock  I'.  M. 

[Signed]  G U— ,  3.  r.  (Seal.) 


222  ATTACHMENT CLAIMANT.  [i*/*/,  2,   T?7/r  8, 

The  notice  must  be  retarned  by  the  constable  to  the  justice,  with 
the  time  and  manner  of  service  indorsed  thcreon."(l)  The  same 
rales  are  applicable  to  the  trial,  which  have  heretofore  been  state(l(2) 
in  relation  to  a  trial  of  the  right  of  property  taken  on  execution. 

If  the  justice  determine  the  right  of  property  to  be  in  the  claim- 
ant, judgment  is  entered  accordingly,  and  ibr  tlie  costs.*'(3) 

If  the  riiiht  to  part  of  the  property  claimed  is  I'ound  in  the  claim- 
ant and  part  in  the  defendant  to  the  attachment,  judgment  is  render- 
ed for  the  claimant  for  the  goods  owned  by  him;  but  the  costs  are 
divided  in  such  manner  as  the  justice  shall  be  of  opinion  is  reasona- 
ble and  just.''(4)  The  costs  adjudged  against  the  plaintitF  to  the 
attachment,  on  the  trial  of  the  right  of  property  before  a  justice,  or 
on  an  appeal,  or  certiorari,  are  taxed  in  the  general  cost  bill  of  the 
proceedings  on  the  attachment,  and  paid  in  the  same  manner  as  the 
other  costs  thereof."^  Upon  the  trial  of  the  right  of  property  in  or- 
dinary cases  no  appeal  lies.(o)  But  an  ajjpcal  at  the  instance  of 
any  one  of  the  creditors  who  has  filed  his  claim  with  the  justice,  is 
allowed,  upon  the  trial  of  right  of  property  taken  on  an  attachment, 
if  security  is  given  within  ten  days,  as  in  other  cases.'^(G) 

So,  a  certiorari  lies  as  in  other  cases,  if  sued  out  and  served  be- 
fore the  end  of  the  session  of  the  court  of  common  pleas  holden  in 
the  proper  county  next  after  the  rendition  of  the  judgment.*^     If  an 

(a)  Stat.  81,  $5,  (I.)  Id.  ib.  §G.  (c)  Id.  83,  $10. 


(1)  Form  of  return: 

June  1,  1846.      Delivered  a  cop)-  of  the  within  notice  to  A V. ,  [or 

R L ,  the  agent  or  attornej'  of  A B ,  as  iht  case  may  ie]  Or  in- 
stead of  the  above,  say:    June  1,  1846.      Left  a  copy  of  the  witliin  notice  at  the 

usual  place  of  abode  of  A B ,  he  being  absent. 

I J ,  Constable. 

(2)  See  pages  174,  175. 

(3)  Form  of  judgment  for  the  claimant: 

Trial  had,  and  I  do  find  that  tlie  right  of  said  property  is  in  .said  K L , 

the  claimant.      It  is  therefore  considered  by  me,  tliat  the  said  claimant  recover  of 

tlie  said  A B ,  the  plaintiff  in  attacliment,  tlie  goods  and  chattels  aforesaid, 

togetlier  with  his  reasonable  costs,  herein  taxed  at dollars,  cents. 

(4)  Form  of  judgment  wliere  the  costs  are  divided: 

Trial  had,  and  L  do  find  that  the  riglit  of  the  following  property  is  in  the  said 

K L ,   the  claimant  tiiereof,   to  wit:   [liere  nienfion  the  arlicles  lohtch  the 

claimant  is  entitled  to,-]  and  I  do  also  find  and  adjudge  that  the  right  to  tlie  follow- 
ing property,  is  in  the  said  defendant  to  said  attachment  and  not  in  the  said  chiim- 
ant,  as  lie  hath  claimed,  to  wit:  [htre  descrilie  tlie  articles  owned  hy  llie  defendant  in 
attachment.]  It  is  therefore  considered  by  me,  that  the  said  claimant  recover  of 
the  said  A B ,  the  goods  and  cliattels  aforesaid  found  by  me  to  be  his,  to- 
gether with  a  reasonable  proportion  of  the  costs  herein,  being dolhu-s,      ■ 

cents.     The  residue  of  the  costs  herein,  are dollars,  cents. 

(5)  See  page  174. 

(fi)  For  the  form  of  the  appeal  bond,  see  page  124. 


§6.]  ATTACHMENT CLAIMANT.  223 

appeal  bond  is  not  given  within  ten  days,  or  a  certiorari  is  not  sued 
out  and  served  within  the  time  above  mentioned,  the  judgment  of 
justice  forever  determines  the  right  to  the  contested  property,  as 
between  creditor  and  claimant.^  Within  ten  days  after  the  rendi- 
tion of  judgment,  (if  no  appeal  is  taken,  or  writ  of  certiorari  is 
served  within  that  time.)  the  justice  must  issue  an  order  to  the  con- 
stable in  whose  custody  the  property  may  be,  to  deliver  it  to  the 
successful  claimant.(l)  The  constable  must  immediately  obey  the 
order,  and  will  not  afterwards  be  liable  to  an  action  for  having  at- 
tached the  property .** 

When  the  property  is  adjudged  by  the  justice  in  the  claimant, 
and  the  plaintiff  perfects  his  appeal  within  ten  days,  or  sues  out  a 
certiorari,  which  is  served  within  ten  days,  the  property  must  re- 
main in  the  hands  of  the  constable,  and  must  be  disposed  of  in  the 
same  manner  as  if  it  had  not  been  claimed,  unless  the  claimant, 
within  ten  days  after  the  rendition  of  the  judgment,  files  with  the 
justice  a  bond,  payable  to  the  defendant  in  attachment,  with  good 
and  sufficient  security,  in  double  the  appraised  value  of  the  prop- 
erty, conditioned,  tliat  if  final  judgment  shall  be  had  in  the  court  of 
common  pleas  against  the  claimant,  he  will  pay  the  appraised  value 
of  the  property  to  the  justice,  or  such  other  justice  as  shall  have 
charge  of  the  suit,  for  the  use  of  such  person  as  shall  be  legally  en- 
titled thereto: (2)  in  which  case  the  property  must  be  restored  to  the 
claimant,  in  the  same  manner  as  if  no  appeal  had  been  taken,  or 
certiorari  allowed.*^ 

(a)  Stat.  83,  $10.  (b)  Id.  81,  82,  $6.  (c)  Id.  82,  $8. 


(1)  The  orckr  can  be  readily  made  out  from  the  form  on  page  174,  note  (2). 

(2)  Form  of  bond  executed  by  claimant  for  property-  delivered  to  liim: 

Know  all  men  by  these  presents,  tliat  we,  K L ,  J ■  D ,  and 

C S ,  are  held  and  firmly  bound  to  C D [tJie  absent  or  abscond- 

ins;  debtor,]  in  the  sum  of  [here  insert  double  the  appraised  value  of  the  property 
claimed;]  for  the  pa}mt;nt  of  wliich  we  jointly  and  severally  bind  ourselves.  Seal- 
ed with  our  seals,  and  dated  this,  —  daj'  of ,  in  the  }ear  18 — . 

AVhereas,  certain  g'oods  and  chattels  attached  as  the  property  of  C D 

at  the  suit  of  A —  B ,  were  claimed  by  the  said  K —  L ,  a  trial  had  of  the 

rig'ht  of  property  therein  before  G H ,  a  justice  of  the  peace  of  the  coun- 
ty of ;  judgment   rendered   by  him   in   favor  of  said   K L ,  and  the 

cause  appealed  [or  taken  by  certiorari,  as  the  case  may  be,]  to  the  court  of  com- 
mon pleas  of  said  county  by  tiie  said  A B : 

Now,  tiie  condition  of  the  above  obligation  is  such,  that  if  the  said  court  of  com- 
mon pleas  shall  render  final  judgment   against   said  K ■  L ,   in  said  cause, 

and  he  shall  thereupon  pay  to  said  justice  (or  sucii  other  justice  as  may  have 
charge  of  said  suit  in  attachment)  the  sum  of  [here  insert  the  amount  of  the  ap- 
praised value  of  the  property  claimed,  (the  appraised  value  of  said  goods  and  chat- 
tels,) for  the  use  of  sucli  person  or  persons  as  may  be  legally  entitled  thereto^  then 
this  obligation  to  be  void;  otiierwise  to  be  and  remain  in  full  force. 

[Signed,]  K L ,  [Seal.] 

J D ,  [Seal.] 

C S .  [Seal.] 


224  ATTACHMENT CLAIMANT,  \Prt.  '2^   Title  Z^ 

The  justice  must  file  the  bond  in  his  uflice  lor  the  use  of  such 
persons  as  may  be  interested  tiierein.* 

Where  the  riglit  to  the  property  has  been  found  by  tlic  justice 
not  to  be  in  the  claimant,  and  an  appeal  has  been  taken  by  him,  or 
certiorari  issued  at  iiis  instance,  and  served  within  ten  days,  as  above 
mentioned,  the  proi)erly  must  be  delivered  to  the  claimant  on  his 
giving  bond  and  security  in  the  manner  just  stated;  but  if  no  such 
bond  and  security  be  given  within  ten  days  after  the  rendition  of 
the  judgment,  the  property  must  remain  in  the  hands  of  the  con- 
stable, to  be  disposed  of  in  the  same  manner  as  if  it  had  not  been 
claimed.  In  all  cases  where  the  property  claimed  is  sold  by  the 
constable,  pending  the  appeal  or  certiorari,  the  avails  of  the  sale 
must  be  paid  to  the  justice  and  remain  in  his  hands  until  a  final 
judgment  is  rendered  on  the  appeal  or  certiorari.  If  the  court  on 
final  judgment  determine  that  the  property  belongs  to  the  claimant, 
the  projierty,  or  the  money  made  by  its  sale,  must  be  delivered  to 
him;  if  the  judgment  of  the  court  is  against  the  claimant,  the  pro- 
ceeds of  the  property  must  be  a])portioned  in  the  same  manner  as 
otlier  money  paid  in  on  the  attachment.'' 

If  the  claimant  receives  the  property  and  gives  bond  and  securi- 
ty, and  final  judgment  is  rendered  by  the  court  of  common  pleas  on 
the  appeal  or  certiorari,  against  him,  the  plaintift'  in  attachment,  or 
other  person  interested  therein,  may,  at  any  time  after  the  rendition 
of  judgment  on  such  attachment,  order  a  scire  facias  to  issue  on  the 
bond.'^O) 

(a)  Stat.  82,  $S.  (b)  Id.  83,  V9- 


(1)  Form  of  the  Scire  Facias: 

The  State  of  Ohio,  county,  ss. 

To  ail)'  constable  of  the  township  of ,  greeting'. 

Whereas,  certain  goods  and  chattels  were  heretofore  attached  as  the  property 

of  one  C D at  the  suit  of  A 15 ,  and  were  claimed  by  one  K 

\. ,  a  trial  had  of  the  right  of  property  of  said  claimant  therein  before  [the  un- 
dersigned] C. n ,  a  justice  of  the  peace  in  and  for  said  county,  judgment 

rendered  therein,  and  the  cause  appealed   [or  taken  by  certiorari,  as  the  case  may 
he']  to  the  court  of  common  pleas  of  said  county;  and  whereas,  upon  the  delivery 

of  said  property  to  said  K I. ,  after  said  cause  was  so  taken  to  said  court, 

to  wit:  on  the day  of ,  in  the  year ,  he  the  said  K L ,  J 

D and  C S ,  executed  tiieir  oldig:ition  under  se:il  in  the  penal  sum  of 

dollars,  unto  the  said  C D ,  conditioned  that  if  [//ere  copy  out  in  sub- 

atajtce  the  cnndilion  of  the  bnnd,  ami  tlicn  proceed  as  fallows:]  and  whereas,  the  said 

court  of  common   pleas  afterwards,  to  wit:  at  tlieir term  in  the  yeai- , 

rendered  final  judgment  against  said  claimant  in  said  cause;  and  said  plaintiff  in  at- 
tachment, on  the day  of ,  in  the  year ,  recovered  judgment  in  said 

attachment  suit  against  said  C D .      By  reason  of  the  premises,   the  said 

K L ,  J-^^ D and  C S a"re  indebted  to  the  said  C D 

in  the  sum  last  mentioned,  which  remains  due  and  unpaid,  and  which  is  bound  in 
their  hands  by  the  said  attachment. 

This  is,  therefore,  to  command  you  to  summon  tjie  said  K I. ,  J iJ 

and  C S ,  to  be  and  appear  before  me,  G H ,  a  justice  of  the  peace 

in  and  for  the  township  of ,  in  the  county  of ,  at  iny  office  therein,  on  the 

day  of ,  in  tlie  year ,  at o'clock  A.  M.  [or  P.  M.  as  the  case 


§6,  7.]  ATTACHMENT GARNISHEE.  225 

Sec,    VII.  —  OF  proceedings  against  the  garnishee,  and  forms 

THEREFOR. 

The  person  who  has  possession  of  property  belonging  to  the  ab- 
sent or  absconding  debtor,  or  who  owes  him,  is  called  the  garnishee. 
The  mode  in  which  he  is  made  a  party  to  the  attachment  by  the 
plaintiff,(l)  and  the  manner  in  which  he  is  served  with  process,(2) 
have  been  already  stated. 

If  a  warrant  has  been  issued  against  him,  he  is  brought  forthwith 
before  the  justice,  examined  under  oath  or  affirmation  touching  the 
property  and  credits  of  the  defendant  in  his  hands  and  possession, 
or  within  his  knowledge.*  The  justice  should  reduce  the  examina- 
tion to  writing.  If  the  plaintiff  desire  it,  the  proceeding  against 
the  garnishee  may  be  discontinued  by  him  at  his  own  costs.(3)  But 
if  the  plaintiff  does  not  discontinue  the  suit,  the  justice  must  require 
the  garnishee  to  enter  into  a  recognizance,  with  one  good  and  suffi- 
cient surety,  conditioned  to  pay  any  sum  and  costs  which  may  be 
awarded  against  him  in  the  suit  as  garnishee,  and  on  failure  to  enter 
into  such  recognizance,  he  must  be  committed.''(4) 

(a)  Stat.  83,  $12.  (b)  Id.  84,  $14. 


may  be,'\  to  show  cause,  if  any  there  be,  why  judgment  should  not  be  rendered 
against  them  for  the  said  appraised  value  of  said  property,  with  costs,  and  why 
execution  should  not  issue  therefor:  And  of  this  writ  make  legal  service  and  due 
return. 

Given  under  my  hand  and  seal,  this day  of ,  in  the  year  18-—. 

G H •,  J.  p.  [Seal] 

Tliis  writ  is  served  and  returned,  and  trial,  judgment  and  execution  had,  in  the 
same  manner  as  where  scire  facias  is  issued  against  bail  for  the  stay  of  execution; 
for  whicli,  see  page  136. 

(1)  See  page  218. 

(2)  See  pages  220,  221. 

(3)  For  the  form  of  the  judgment  in  such  case,  see  page  103. 

(4)  The  form  of  the  recognizance  for  the  garnishee  and  the  surety,  with  the 
condition  above  mentioned,  can  be  readily  made  out  from  the  form  of  a  recognizance 
for  the  appearance  of  a  defendant  when  taken  on  a  capias,  which  will  be  found  on 
page  51.     Tlie  condition  of  the  recognizance,  however,  will  be,    "that  the  said 

B O [the  garnishee]  will  pay  such  sum  of  money  and  costs  as  shall  be 

awarded  against  him  as  garnishee  in  said  suit." 

The  Mittimus  may  be  in  the  following  form: 

The  State  of  Ohio, Township, County,  ss. 

To  the  keeper  of  the  jail  of  the  county  aforesaid,   greeting. 

Whereas,  B O has  been  arrested  and  is  now  in  custody  as  garnishee,  at 

the  suit  of  A B in  attacliment  against  C D ,  upon  a  warrant  issued 

by  me,  G H ,  a  justice  of  tiie  peace  in  and  for  said  county,  in  said  suit,  now 

pending  before  me,  and  hath  failed  to  enter  into  recognizance  to  pay  any  sum  and 
costs  tiuit  may  be  awarded  against  him  in  tlie  premises,  as  ordered. 

Therefore,  in  tlie  name  of  the  State  of  Ohio,  I  command  you  to  receive  the  said 

B O into  your  custody  in  the  jail  of  the  county  aforesaid,  there  to  remain 

until  discharged  by  due  course  of  law. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G H ,  J.  p.  {Seal.) 

The  mittimus  is  returned  as  heretofore  directed,  page  52. 

29 


226  ATTACHMKNT GARNISHEE.  [Pft.  2^   TUk  B^ 

If,  instead  of  a  warrant,  a  copy  of  the  writ  of  attachment  and 
afTidavit  be  served  on  the  n;arnislioe  by  tlie  constable,(l)  the  gar- 
nishee must  appear  pursuant  to  the  notice,  within  live  days  from  the 
time  of  such  service,  and  may  be  examined  luider  oath  or  allirma- 
tion,  as  just  stated/  The  examination  should  be  reduced  to  writing 
by  the  justice. 

If  tlie  garnishee  do  not  appear  according  to  tlie  notice,  the  jus- 
tice may,  on  the  apphcation  of  the  phiintiff,  his  agent  or  attorney, 
issue  an  attachment  against  him.''  The  attachment  commands  the 
officer  to  bring  the  body  of  the  garnishee  before  him,  to  make  an- 
swer to  all  questions  that  shall  be  put  to  him  touching  the  property 
and  credits  of  the  defendant,  in  his  hands  and  possession,  or  within 
his  knowledge.''(2) 

If  a  garnishee  refuses  to  make  full  answers  to  the  questions  put 
to  him  l)y  the  justice,  he  may  be  fined  in  any  sum  not  exceeding  one 
hundi-ed  dollars,  .Fudgment  is  rendered  by  the  justice  in  favor  of 
the  State  for  the  use  of  the  plaintilf  in  attachment,  and  execution 
issued  therefor.  The  fine,  wdien  collected,  is  distributed  like  other 
moneys  belonging  to  the  defendant  in  attachment.  The  garnishee 
may  appeal  from  this  judgment.'' 

The  suit  ngainst  a  garnishee,  after  his  examination,  is  continued 
until  the  action  against  the  defendant  in  attachment  is  determined, 
unless  the  plaintiff  shall  think  proper  to  discontinue  it.  If  judgment 
on  the  attacliment  is  rendered  against  the  plaintilf,  then  judgment 
for  costs,  as  in  case  of  nonsuit,  must  be  rendered  in  favor  of  the 
garnishee. *^(3)  But  if  the  plaintiff  recovers  judgment  against  the 
absconding  or  absent  debtor,  the  suit  between  the  plaintiff  and  gar- 
nishee is  immediately  afterwards  tried.  "■  If  in  such  suit  so  instituted 
against  the  garnishee,  the  plaintifi"  shall  be  nonsuited,  his  suit  dis- 
continued, or  judgment  be  had  against  him,  the  said  garnishee  shall 
recover  costs;  and  if  the  plaintiff"  shall  recover  judgment  against 
the  defendant  in  such  attachment,  and  the  garnishee  shall  deliver 
up  to  the  constable,  before  judgment  is  had  against  him,  all  the 
goods,  chattels,  and  other  property  of  such  defendant,  in  his  posses- 
sion, and  shall  also  pay  over  to  the  said  justice  all  moneys  due  from 
him  to  said  defendant,  then  the  costs  which  shall  have  accrued  on 
such  suit,  against  such  garnishee,  shall  be  paid  out  of  the  proceeds 
of  the  pi'operty  attached  and  belonging  to  the  defendant;  but  if  the 
garnishee  shall  not  appear,  or  if  appearing,  shall  refuse  truly  to 
confess  the  matters  alledged,  and  the  plaintiff,  on  trial  shall  recover 
judgment,  the  said  garnishee  shall  pay  costs." "^ 

If  the  garnishee  appear  and  truly  state  the  matters  connected  with 
his  liability,  no  judgment  can  be  entered  against  him  for  costs,  but 
they  may  be  taxed"  with  the  other  costs  of  the  attachment.'^ 

(a)  Stat.  83,  $12.  (b)  Id.  87.  (c)  Id.  84,  $13. 

(1)  As  to  wlicn  and  how  such  service  is  made,  see  pag-e  221. 

(2)  The  attachment,  and  return,  and  docket  entry  can  be  readily  made  out  by 
altering  the  form  in  Part  1,  Chap.  9,  §2. 

(3)  For  the  form  of  such  judgment,  see  page  103. 


§7,8.]  ATTACHMENT TRIAL  AND  JUDGMENT  ON.  227 

From  the  time  that  the  garnishee  is  served  with  a  copy  of  the 
attachment,  &:c.,  or  with  the  warrant,  he  stands  accountable  to  the 
plaintiff  in  attachment,  to  the  amount  of  the  moneys,  property,  and 
credits,  in  his  hands,  or  due  from  him  to  the  defendant  in  attach- 
ment.^ The  garnishee  may  make  any  defence  by  way  of  set  otf, 
or  otherwise,  which  he  could  do  if  sued  by  the  absconding  or  non- 
resident debtor."* 

The  statute  does  not  point  out  the  manner  in  which  the  garnishee 
shall  be  made  accountable  where  he  owes  the  absconding  debtor  a 
debt  that  is  not  due.  Execution,  of  course,  cannot  issue  directly 
against  the  garnishee  for  a  debt  which  is  payable  by  him  at  a  future 
period.  This  would  be  creating  a  new  contract.  The  usual  prac- 
tice, however,  in  such  cases,  is  to  render  judgment  and  issue  execu- 
tion against  the  garnishee,  when  the  debt  becomes  due. 

If  the  garnishee  do  not,  before  trial,  deliver  up  the  property  in 
his  hands,  or  pay  the  amount  he  owes,  as  before  mentioned,  and  the 
justice  finds  that  at  the  time  process  was  served  upon  him,  he  had 
in  his  possession  goods  and  chattels,  or  credits,  belonging  to  the  de- 
fendant in  attachment,  or  that  the  garnishee  v\-as  then  indebted  to 
him  on  a  claim  then  due,  the  justice  should  so  state  on  his  docket, 
and  render  judgment,  as  in  other  cases,  in  favor  of  the  plaintiff, 
against  the  garnishee,  for  the  value  of  the  goods,  or  the  amount  of 
the  credits  or  debts  due  by  the  garnishee.  If,  however,  the  amount 
of  the  claims  against  the  defendant,  and  costs,  are  less  than  the 
amount  of  the  effects  in  the  hands  of  the  garnishee,  the  judgment 
against  him  should  be  only  sufficient  to  cover  such  claims  and  the 
costs. 

Sec.    VIII. OF    PROCEEDrNOS    on    the    writ    of   ATTACHMENT   AFTER 

ITS  RETURiJ. 

The  writ  of  attachment  must  be  returned  w^ithin  twenty  days. 
If  it  appear  from  the  return  that  the  defendant  has  no  property  or 
effects,  and  there  is  no  garnishee,  the  proceedings  on  it  are  at  an 
end,  and  the  plaintiff  must  pay  the  costs.  The  justice,  however, 
in  such  case,  and  also  where  there  is  not  a  '■sufficiency'  of  property 
or  effects  whereon  to  levy,  must,  on  application  of  the  plaintiff"  cer- 
tify his  proceedings  to  the  court  of  common  pleas,  for  the  purpose 
of  attaching  the  real  estate  of  the  defendant.*^ 

If  goods  are  attached,  or  there  is  a  garnishee,  then  the  justice,  at 
any  time  after  the  expiration  of  tiiirty  days  from  the  return  of  the 
writ,  may  render  judgment,  upon  sufficient  proof,  in  favor  of  the 
plaintiff,  against  the  absent  or  aljsconding  debtor.*^ 

The  plaintiff  must  satisfy  the  justice  that  notice  of  the  issuing  of 
the  attachment  was  duly  advertised ;( I)  for  if  the  notice  required 

(a)  Ptat.  83,  $12.  (c)  Stat.  86,  $22. 

(b)  Wright's  Rep.  724.  (d)  Id.  84,  $15. 


(1)   As  to  when  and  how  the  notice  must  be  published,  see  page  219. 


228  ATTACHMENT TRIAL  AND  JUDGMENT  ON.    [P/'Z.  2,  Title  8, 

by  law  has  not  been  given,  the  justice  must  render  judgment  as  in 
case  of  nonsuit  against  the  phuntiti"(l)  and  no  iurtlier  proceedings 
can  afterwards  he  had  in  the  cause  in  favor  of  other  creditors.  If 
upon  the  tnal,  tiic  justice  finds  that  the  phiintill'  who  sued  out  the 
writ  has  no  just  claim  against  the  defendant,''  or  if  the  plaintill"  dis- 
misses or  discontinues  his  suit,  the  justice  may  render  judgment  and 
issue  execution  against  him  for  the  costs;  but  in  either  event  the 
creditors  who  have  liled  their  claims  may,  notwithstanding,  proceed 
in  the  cause  to  final  judgment  and  execution,  in  the  same  manner 
as  if  the  original  suit  had  not  been  discontinued  or  dismissed,  or 
judgment  entered  against  the  plaintilT.'* 

From  the  time  the  attachment  issued  until  the  expiration  of  three 
months,  the  plaintif!'  and  other  creditors  may  present  and  prove 
their  accounts  and  demands  against  the  defendant,  and  the  justice 
is  authorized  during  that  time,  to  receive,  audit  and  adjust  the 
claims.*^  If  any  one  of  the  creditors  prove  tliat  there  is  due  to  him 
an  amount  exceeding  one  hundred  dollars,  the  jurisdiction  of  the 
justice  over  the  whole  cause  ceases,  and  he  must  immediately  cer- 
tify his  proceedings,  together  with  the  writ  and  the  constable's  re- 
turn, to  the  court  of  common  pleas  next  to  be  holden  in  the  proper 
county.'* 

The  statute  provides,®  that  any  writ  of  attachment  which  may  be 
issued  out  of  the  court  of  common  pleas  shall  be  a  supersedeas  to 
all  attachments  issued  by  a  justice  of  the  peace,  (except  so  far  as 
herein  provided.)  which  may  be  undetermined  at  the  time  of  serv- 
ing said  writ;  and  it  shall  be  lawful  for  the  officer  serving  the  same, 
to  take  into  his  possession  all  goods  and  chattels  taken  by  the  con- 
stable, as  if  no  writ  of  attachment  had  been  issued  by  the  justice: 
p'ovided^  that  it  shall  be  competent  for  every  plaintiff  in  attachment, 
and  such  as  may  file  their  claims  before  the  justice  of  the  peace,  to 
proceed  thereon  to  final  judgment,  a  transcript  of  which  judgment 
shall  be  filed  in  the  court  of  common  pleas,  and  the  parties  plaintiffs 
thereto  shall  be  entitled  to  the  same  distribution  as  if  such  judg- 
ment had  been  obtained  in  said  court,  and  all  costs  accruing  before 
said  justice  shall  be  taxed  with  the  costs  in  court,  and  paid  as  in 
other  cases  of  attachment  in  court. 

If  judgment  is  rendered  in  favor  of  the  plaintiff  or  other  credi- 
tors, the  justice  may,  three  months  after  the  levy  by  the  attachment, 
issue  a  venditioni  exponas(2)  for  the  sale  of  the  property  and  effects. 

(a)  Stat.  84,  $15.  (d)  Id.  85,  $16. 

(b)  Id.  85,  $19.  (e)  Id.  93,  $15. 

(c)  Id.  $18. 

(1)  For  the  form  of  the  Judgment,  see  page  103. 

(2)  Form  of  the  Venditioni  Exponas  : 
The  State  of  Ohio,  county,  ss. 

To  [here  insert  the  name  nf  the  constable  who  has  the  property  in  his  possession  or 
control,  or  if  he  /ye  out  of  ojjice  or  dead,  then  the  lurit  should  be  directed  To  any]  Con- 
stable of townsliip,  greeting: 

You  are  hereby  commanded  that  those  goods,  chattels,  rights,  credits,  and  ef- 
fects of  C D ,  an  absent  [or  absconding  debtor,  as  the  case  may  be]  to  wit: 

[here  insert  the  description  of  the  articles  from  the  inventory,]  which  you,  [or  if  the 


§7,8.]  ATTACHMENT EXECUTION  ON.'  229 

He  should  also  issue  an  execution  against  the  garnishee  on  the 
judgment  against  him.* 

The  property  should  be  advertised,  the  sale  conducted,  and  the 
return  made  by  the  constable,  as  in  other  cases.(l)  The  justice 
may  allow  to  the  constable  and  appraisers  such  compensation  as  he 
may  think  reasonable,  for  services  not  otherwise  provided  for  by 
lav*^.''  If,  upon  the  adjustment  of  the  claims,  it  should  be  found 
that  the  amount  of  money  made  is  not  sufficient  to  pay  them,  there 
must  be  an  apportionment  made  among  the  creditors  according  to 
the  amount  due  them.''(2)  When  sufficient  moneys  and  effects  are 
not  found  to  satisfy  the  legal  costs  of  the  attachment  and  service, 
such  costs,  including  all  costs  which  may  have  accrued  in  any  trial 
with  any  person  summoned  as  a  garnishee,  must  be  discharged  by 
the  creditors  in  proportion  to  their  several  demands  as  adjusted.*^ 

An  appeal  and  certiorari  lies,  as  in  other  cases,  from  any,  judg- 
ment rendered  by  the  justice  in  the  course  of  his  proceedings  in 
attachment.*^  The  remedy,  however,  by  certiorari,  in  cases  be- 
tween the  plaintiff  and  a  claimant  of  property  attached,  is  limited 
in  the  mode  heretofore  stated. (3) 

Sec.  IX.-^ — forms  of  affidavits  for  a  writ  and  for  proceedings 

AGAINST  A  garnishee. 

The  State  of  Ohio, county, township,  ss. 

A B (4)  makes  oath,  and  says,  that  C D is 

(a)  Stat.  84,  85,  $15,  17.  (b)  Id.  85,  $18.  (c)  Id.  ib.  $20. 

eonstahle  who  attached  the  property  be  dead  or  out  of  office,  say,  which  one  I —  J — , 

late  constable  of  said  township,]  attached  as  the  property  of  said  C D ,  at 

the  suit  of  A B ,  you  expose  to  sale;  and  this  writ,  with  the  money  made 

by  the  sale  of  said  property  and  effects,  duly  return. 

Given  under  my  hand  and  seal,  this day  of ,  18 — , 

G H ,  J.  p.     [Seal] 

of township. 

(1)  As  to  the  mode  of  conducting- sales  on  execution,  &c.  see  pages  154,  155. 

(2)  Tliis  apportionment  may  be  made  as  follows  : 

Suppose  the  amount  of  money  made  is  iJ50,  the  costs  $5,  and  the  amount  of 

debts  to  be  paid  §250.     Subtract  from  the  amount  of  money  made, $50 

the  amount  of  the  costs, 5 

which  leaves  the  amount  to  be  divided  among  the  creditors $45 

Reduce  the  amount  left  for  creditors  to  cents,  [4500,]  and  divide  it  by  the  whole 
amount  due  to  creditois,  [$250,]  thus  : 

250J  4500  LIS 
250 

2000 
2000 


which  gives  the  amount  of  cents  to  be  paid  each  creditor  on  each  dollar  due  him, 
being  eighteen  cents. 

(3^   See  page  223. 

(4)  If  the  affidavit  he  made  by  an  agent,  say,    T —  S ,  agent  of  A —  B , 

makes  oath  and  saitli,  that  C D is  justly  indebted  to  liim,  the  said  A 


230  ATTACHMKNT  —  FORMS  IN.  [Pi^t.  2,  Title  8, 

justly  indebted  to  him  in  the  sum  of dollars,  or  more,  not  ex- 
ceeding one  liundred  dollars,  and  that  said  C D hatli  ab- 
sconded, to  the  injury  of  his  creditors,  as  he  verily  believes,  [or  say^ 
is  not  a  resident  of  said  county  of .] 

If  the  phi inli[f'  wishes  to  proceed  against  a  person  wlio  owes  the  ab- 
sent or  absconding  dvblor^  add  the  following  to  the  above  ajfidavit: 

And  the  said  A B makes  oath,   and  further  says,  that  he 

has  ijood  reason  to,  and  does  verily  believe  that  one  I G 

is  inckdjted  to  the  said  C D by  note  [or  account,  &c.,  de- 
scribing the  nature  and  amount  of  the  cleht^  as  nearly  as  may  Z'f],  or 

saj/,  that  one  I G hath  in  his  possession,  belonging  to  the 

said  C D ,  the  following  described  property  and  effects, 

to  wit:  a  common  two  horse  wagon,  one  note  of  hand  against  J 

F ,  for  twenty  dollars,  or  thereabouts,  [describing  the  property 

or  rfects^  as  nearly  as  may  bei\ 

If  the  plaintiff  ivishes  to  procure  a  warrant  against  the  person 
named  above,  who  owes.,  or  has  possession  of  the  property  of  the  defen- 
dant., add.,  And  the  said  A B makes  oath,  and  further  says, 

that  he  is  in  fear,  and  verily  believes,  that  said  I G will  ab- 
scond before  judgment  can  be  had  against  him  in  the  premises. 

[Signed^  A B . 

Sworn  to  and  subscribed  before  me,  this day  of ,  A. 

D.  18—. 


G II ,  J.  P. 


Sec.  X. —  FORM  of  a  writ  of  ATTACIIMENT.(I) 


The  State  of  Ohio: 

To  any  constable  of township, county,  greeting: 

Whereas,  A B [or  T S ,  agent  for  A 

B ,  as  the  case  may  be'].,  hath  this  day  made  oath  [or  affirmation, 

OS  the  case  may  be.']  that  C D is  justly  indebted  to  him,  and 

that  the  said  C D alisconds,  to  the  injury  of  his  creditors, 

[or  that  the  said  C D is  not  a  resident  of county, 

as  the  case  may  be^.,  as  he  verily  believes:  You  are  therefore  hereby 
commanded  to  attach  tiie  goods,  chattels,  rights,  credits,  moneys 

and  effects  of  the  said  C D ,  which  may  be  in  your  county, 

agreeably  to  law.     Here  add.,  if  the  affidavit  has  been  made  and  a 

loarrant  is  not  to  issue:  "and  whereas  A B-* —  hath  made  oath 

[or  affirmation,  as  the  case  may  be].,  that  he  does  verily  believe  that 
I —  G —  is  indebted  to  [or  hath  property  of,  &c."  Jiere  stating  the 
facts  in  relation  to  propert])  or  debts  as  they  are  stated  by  the  plaintiff 


B ,  in  tbe  sum  of dollars,  or  more,  not  exceeding  one  hundred  dollars, 

and  tli;it  said  C T) lialli  absconded,  to  the  injury  of  his  creditors;  or,  is 

not  a  resident  of  said  coiinly  of ,  &.c. 

(1)  This  form  is  prescribed  by  the  Statute,  page  86. 


§10,11,12.]  ATTACHMENT FORMS  IN,  231 

171  the  above  form  of  the  affidavit;  and  then  proceed  as  foUovjs :']  You 
are  therefore  commanded  to  summon  the  said  I G ,  agree- 
ably to  law,  that  he  appear  before  me,  G H ,  a  justice  of 

the  peace  within  said  township,  on  the day  of ,  1 8 — ,  [ivitJi- 

injive  days^']  then  and  there  to  make  answer  under  oath  or  affirma- 
tion touching  the  property  and  credits  of  the  said  C D , 

within  his  knowledge  and  possession:  Hereof  fail  not,  and  of  this 
writ  make  legal  service  and  due  return,  according  to  law. 

Giv'en  under  mv  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G H ,  J.  P.  (Seal.) 

in  and  for  said  township  and  county. 


FORM  OF  THE  INDORSEMENT  ON  THE  BACK  OF  THE  WRIT, 


The  plaintiff  in  this  case  claims 
Costs  of  this  writ,  &c. 

Amount 


G H ,  J.  p. 


Sec.    XI. FORM  OF  WARRANT  AGAINST  A  GARNISHEE. (1) 

The  State  of  Ohio, Township, County,  ss. 

To  any  constable  of  said  township,  greeting: 

Whereas,  an  attachment  was  issued  on  the  —  day  of ,  in  the 

year ,  by  me,  G H ,  a  justice  of  the  peace  in  and  for 

said  township  and  county,  against  the  property  and  credits  of  C 

D ,  an  absconding  [or  non-resident]  debtor,  at  the  suit  of  A 

B ,  upon  the  affidavit  of  said  A B ,  who  made  oath  [or 

affirmation]  that  [hei-e  copy  from  the  affidavit  of  the  plaintiff.^  all  the 
facts  as  therein  stated;  and  then  proceed  as  follows-]  You  are  there- 
fore, in  the  name  of  the  State  of  Ohio,  hereby  commanded  to  take 

the  body  of  the  said  I G ,  and  him  forthwith  bring  before 

me,  at  my  office,  in  the  township  and  county  aforesaid,  to  answer 
the  premises;  and  then  and  there  return  this  writ:  and  for  so  doing 
this  shall  be  your  warrant. 

Given  under  my  hand  and  seal,  this day  of ,  A.  1).  1 8 — . 

G H ,  J.  P.  {Seal) 


Sec.    XII. FORM  of  notice  of  the  issuing  of  the  ATTACHMENT. 


At  my  instance,  an  attachment  was  this  day  issued  by  G- 


II ,  a  justice  of  the  peace   of township,  county, 

(1)  As  to  when  this  may  be  issued,  see  pag^e  218. 


232  ATTACHMENT FORMS  IN.        [  Pr<.  2,  Ti^/g  8, 

against  the  property  and  effects  of  C D ,  an  absconding 

debtor,  [or  a  non-resident  of  said  county.] 

Dated  this  [here  insert  the  day^  month  and  year  the  attachment  is- 

*"^  *^  [Signed]  ^ j3 


Sec.  XIII.  —  constable's  return  to  a  writ  ok  attachment. 


I  executed  this  writ  on  the  —  day  of ,  1  8 — ,  by  attaching,  in 

the  presence  of  T S and  L H ,  two  credible  per- 
sons, certain  property  [in  the  possession  of  I G ,]  described 

in  the  inventory  and  a])j)raisement  herewith  returned;  and  which 

ttiow  remains  in  niy  hands;  or  say^  if  the  fact  so  be,  was  delivered  to 
G ,  upon  bond  and  security  being  given  as  required  by 

law.]     The  said  C D hath  not  any  goods  or  other  thnigs 

in  said  county,  besides  the  above,  which  I  can  attach  by  virtue  of 
this  writ. 

I J ,  Constable. 

May  I,  \ SAG.     Fees, . 

another  form  of  return. 

The   within   named   C D hath  not  any  thing  in  said 

county  of ,  which  I  can  attach  by  virtue  of  this  writ.     On  the 

day  of ,  in  the  year ,  I  summoned  the  within  named 

I G by  leaving  with  him  at  his  usual  place  of  residence, 

a  copy  of  the  within  writ,  and  an  attested  copy  of  the  affidavit 

therein  mentioned,  together  with  a  written  notice  to  said  I 

G to  appear  at  the  time  and  place  in  the  writ  mentioned. 

I J ,  Constable. 

May  1,  1846.     Fees, . 

FORM  OF  inventory  AND  APPRAISEMENT. 

An  inventory  and  appraisement  of  property  attached  by  the  un- 
dersigned I J ,  constable  of township, county, 

at  the  suit  of  A B against  C D ,  made  this  —  day 

of ,  1 8 — ,  upon  actual  view,  by  said  constable,  and  T S 

and  L H ,  two  freeholders  of  said  county,  (the  said  T 

S and  L H being  first  duly  sworn  [or  affirmed]  by  said 

constable,)  to  wit: 

One  sorrel  horse,  appraised  at  forty  dollars. 
One  wagon  ''  fifty-two  dollars. 

I J ,  Constable. 

T S , 

L H . 

May  8,  184G. 


§13,14,15.]  ATTACHMENT POCKET  ENTRIES.  233 

Sec.  XIV.—- form  of  bond  to  the  constable  for  the  rE'Delivery 

OF  PROPERTr. 

Know  all  men  by  these  presents,  that  we,  1 G- 


E and  E — —  F ,  of  the  county  of ,  are  held  and  firm- 
ly bound  to  I J ,  constable  of township,  in  said  coun- 
ty, in  the  penal  sum  of  \_here  insert  double  the  appraised  value  of  the 
jjroperty  f\  for  the  payment  of  which  we  jointly  and  severally  bind 

ourselves.     Sealed  with  our  seals,  and  dated  this day  of , 

18-'. 

The  condition  of  the  above  obligation  is  such,  that,  whereas,  by 

virtue  of  a  writ  of  attachment  issued  by  G H ,  a  justice  of 

the  peace  in  and  for  said  township  and  county,   against   C 

D at  the  suit  of  A B ,  on  the  — clay  of ,  in  the 

year ,  the  said  constable  seized  upon  and  took  the  following  pro- 
perty, in  the  possession  of  said  I G ,  to  wit:  [Itere  describe 

the  articles,']  which  have  been  appraised  according  to  law,  at  — — 
dollars;  and  upon  the  ensealing  of  these  presents,  are  re-delivered 
to  the  said  I G . 

Now,  if  the  said  property  above  described,  or  its  said  appraised 
value  in  money,  shall  be  forthcoming  to  answer  tlie  judgment  of 
said  justice,  on  said  attachment,  then  this  obligation  to  be  void: 
otherwise,  to  be  and  remain  in  full  force. 

I G ,    [Seal,] 

T E ,  [>S'ea/,] 

E F [>S'ea^.] 

Sec.  XV. DOCKET  ENTRIES  WHERE  THERE  IS  NO  GARNISHEE. 

A B ,^ 

vs.  >  In  Attachment. 

C D ,S 

PlaintifT's  claim  [liere  give  the  particulars  of 
the  claim,  as  directed^  page  1 1 5.] 

June  1,  1846.  The  plaintiff  filed  his  bill  of  particulars,  and  his 
affidavit,  that  the  defendant  is  justly  indebted  to  him  in  the  sum  of 
,  or  more,  but  not  exceeding  one  hundred  dollars,  and  said  de- 
fendant absconds,  to  the  injury  of  his  creditors,  [<jr  is  a  non-resident 
of county,  as  the  case  niaii  he.]  as  he  verily  believes;  where- 
upon I  issued  a  writ  of  attachment  and  delivered  the  same  to  I 

J ,  constable,  which  was  returned,  June  -— ,  18 — ,  indorsed, 

[Itere  copy  the  return  of  the  constable.  If  no  property  is  attached., 
judgment,  as  in  case  of  non-suit,  is  rendered  against  the  plaintiff  for 
costs;  unless  he  desires  the  p7'oceedings  to  be  certified  to  the  court  (f 
common  pleas,  so  as  to  attach  lands.] 

June  — ,  1846.     C C — ■ — ,  a  creditor,  ])rescnted  Ills  account 

against  the  defendant  for  ^ — ,  per  bill  of  particulars,  filed. 

June — ,  1846.     E C ,  a  creditor,  presented  his  claim 

against  the  defendant,  being  a  note,  dated  ,  lor dol- 

30 


234  ATTACHMENT IOCKIlT  ENTRIES.         [Pvl.  1^  Tltk  Z^ 

lars,  due  on ,  purporting  to  have  been  executed  by  the  de- 
fendant to  the  s:iid  E C ,  which  was,  with  bill  of  particulars, 

filed.  {Here  state  as  above^  all  the  claims  presented  against  the  de- 
fejidant.]  All  s;)id  claims,  with  that  of  the  piaintilf,  were  severally 
adjourned  over  fur  proof  ;;nd  trial,  until  June  — ,  1 846,  at  —  o'clock, 
A.  INI.  {or  r.  M.  as  the  case  matj  be.) 

June. — ,  1846,  1  o'clock^  P.  M.     The  plaintili'and  said  creditors, 

except  X Y ,  appeared.     The  said  phiintiil' produced  a  copy 

of  his  advertisement,  ami  satisfactory  proof  of  having  advertised 
the  issuing  of  the  attachment  herein,  &c.,  agreeably  to  law;  there- 
upon the  said  claim  of  said  plaintill','^  and  the  several  claims  of  said 
several  creditors,  were  successively  tried  and  proofs  duly  made; 
whereupon  it  is  considered  by  me,  that  said  plaintift"  recover  of  said 

defendant  the  sum  of dollars;  that  said  C C recover 

of  said  defendant  the  sum  of dollars;  that  said  E C 

recover,  [Sfc;  rendering  judgment  for  each  of  the  creditors  whose 
claim  is  established.^ 

June — .  1846.     Issued  a  vendi.  for  the  sale  of  the  property  at- 
tached, and  delivered  the  same  to  1 J ,  constable. 

June — ,  1846.     X Y ,  one  of  said  creditors,  this  dny 

appeared,  and  his  above  mentioned  claim  duly  tried  and  proved; 
whereupon,  it  is  considered  by  me,  [^•c.:  Here  enter  judgment  as 
ahove.^ 

June — ,  1846.     Execution  returned,  \liere  copy  the  return^ 

June — ,  1846.     S J this  day  appeared  and  presented 

his  claim  against  said  defendant,  which  is  [jiere  state  the  nature  of 
the  claim.,  trial,  judgment.,  c^c,  as  above.']'^ 

Amount  of  money  made, ,$50  00 

Fees, — Justice, $1    10 

Appraisers, 1   00 

Constable, 215 

Allowance  to  constable  for  removing  and  taking 
care  of  cattle  before  bond  given  for  their  re- 
delivery,        0  75 

5  00 


.$'45  00 
Amount  of  the  above  judgments,  $250:  per  cent  on  the  dollar, 
18  cents. 


DOCKET  ENTRIES  AVHEN  PROCEEDINGS  ARE  HAD  AGAINST  A  GARNISHEE. 


A B- 


vs.  >  In  attachment. 

D- 


\Hei-e  state  particularly  the  nature  of  the  plaintiff'' s  claim^ 

June  1,  1846.     The  plaintiff  filed  his  affidavit,  that  the  said  C 

p is  indebted  to  him  in  the  sum  of dollars,  or  more, 

and  that  the  said  C D is  not  a  resident  of  the  coun- 


§15.]  ATTACIIMF,>'T DOCKET  ENTRIES,  535 

ty  of ,  as  he  verily  believes,  [or  hath  absconded,  to  the  in- 
jury of  his  creditors.]   and  that  the  said  A B hath  good 

reason  and  doth  verily  believe  that,  [fcc,  /ie?'e  inserting  the  words  of 
the  ciffidavit^  icifh  the  descriplion  of  the  property  as  therein  mention' 

ed;^  thereupon  I  issued  a  writ  of  attachment  against  C D , 

with  a  summons  for  [or  a  warrant  for  the  body  of,  as  the  case  may 

be^  said  I G ,  for  his  appearance  on  the day  of 

-,  1 846,  at ^  and  delivered  the  same  to  I J con- 
stable. 

June  6,  1846.     Attachment  returned,  [here  copy  the  7'eturn  of  the 

constable  in  fid/.^     The  said  I G at  the  same  time  appeared, 

W'as  examined  under  oath  touching  the  property  or  credits  in  his 
possession  or  knowledge,  who  made  the  following  statement: 

[Here  reduce  the  testitno?iy  of  the garjiishee  to  writings  thus:  '•'•That 

he  is  indebted  to  C D in  the  sum  of  fifty  dollars,  on  book 

account,  which  is  due  and  unpaid." 

If  the  garnishee  is  brought  before  the  justice  by  warrant  for  his 
body^  a  recognizance  must  be  taJcen^  which  should  be  here  entered.  See 
the  form,  page  225.  If  the  garnishee  refuse  to  enter  into  recogni- 
zance icith  security^  he  must  be  committed  to  jail.  See  the  form  of 
the  mittimus,  page  225.  The  fact  of  the  refusal  or  failure  to  enter 
into  recognizance.^  and  that  the  garnishee  was  committed  to  Jail^ 
shoiild  be  stated  on  the  docket.,  and  then  proceed  as  follows  {] 

Whereupon  further  proceedings  against  said  garnishee  were  con- 
tinued, until  the  —  day  of ,  1846,  —  o'clock,  P.  M.  [here  enter., 

as  in  the  preceding  foi^m.,  the  presentation  or  description  of  such 
claims  as  may  be  produced  by  other  creditors.,  and  that  they  were  ad- 
journed over  for  inquiry  and  trial^ 

June — ,  18 — .  The  plaintiff  [and  above  named  creditors]  ap- 
peared, and  the  plaintiff  produced  a  copy  of  his  advertisement,  and 
satisfactory  evidence  of  having  advertised  the  issuing  of  the  attach- 
ment herein,  fcc,  agreeably  to  law.  Thereupon  the  said  claim  of 
the  said  plaintiff,  [Sfc,  here  entering  the  same  facts.,  so  far  as  they 
are  applicable.,  which  are  found  in  the  preceding  form.,  between  the 
two  *5,  and  then  proceed  as  follows-] 

June — ,  18 — .     The  plaintiff  and  said  I G appeared, 

trial  had,  and  the  latter  [not  having  paid  over  to  me  the   moneys 

aforesaid,  due  from  him  to  said  C D ,  or  if  the  garnishee 

have  property.,  ichich  he  acknowledged  on  oath  to  be  hi  his  hands.,  sa^j., 
''not  having  delivered  up  to  said  constable  the  goods  and  chattels 

aforesaid,  of  said  C D ,  in  his  possession,  I  do  find  upon 

testimony  now  here  examined,  that  the  same  are  of  the  value  of 

dollars;"  or  if  the  plaintiff  wishes  to  prove  that  the  garnishee  is 

liable  for  more  than  he  has  acknowledge  I.,  then.,  instead  of  makivg 
either  of  the  above  two  last  entries,  say,  "Th^^.  said  plaintiff*  and  said 

I G appeared,  trial  iiad,  and  I  do  find  that,"  here  state  the 

amouni  of  the  debt  due  by  tho  garnishee  to  the  defendant,  or  t'  e  kind 
and  value  of  the  properly  which  is  found  to  he  in  tie  possession  of 
the  garnishee.  Judgment  is  then  entered  against  the  garnishee,  as 
in  other  cases.'\ 


23G  ATTACHMENT DOCKET  ENTRIES.  [^Prt.  2,  TU.  G,  §1^.] 

J50CKET  ENTRV  WHERE  THERE  IS  A  CLAIMANT.(]) 

A —  B — ,:) 


vs.  )>  In  attnchnicnt,  for  \vliich  sec  docket,  pna;e 

D- 


JiDic  — ,  18 — .  K Ji this  (lay  filed  \\i\\\  nio  the  follow- 
ing notice  in  writing:  [^licj'c  copy  the  votice  in  ./"//•]     Whereupon,  I 

delivered  a  notice  in  writing  to  said  ]v L ,  to  be  delivered 

by  him  to  I .T — — ,  constable,  which  is  as  follows:  [Jicj-e  copy 

the  notice  in  full.'] 

June — ,  18 — ,  Constable  returned  the  notice,  indorsed,  June  — , 
18 — .  Delivered  a  copy  of  the  within  notice  to  the  within  named 
plaintiff  in  attachment. 

Fees  — .  I J ,  Constable, 

June  — .  1  8 — , o''clock ,  [///f?  time  mentioned  in  the  no- 
tice., for  trial J\  the  said  A B and  K >  T>- appeared, 

[Jiere  enter  the  jxidgment.     See  the  form.,  page  '2,'2'2..,  note  (3),  (4).] 


(1)  This  need  not  be  entered  on  the  docket  with  tlie  proceedings  In  attachment. 


TITLE  IX. 


BAILMENT.(l) 


Bailment  is  the  delivery  of  goods  in  trust,  for  some  specific  ob- 
ject or  purpose,  and  upon  a  conti'act,  express  or  implied,  to  conform 
to  the  object  or  purpose  of  the  trust. 

The  person  who  delivers  the  goods  is  called  the  bailor^  and  he  to 
whom  the  goods  are  delivered  is  called  the  bailee. 

The  law  of  bailments  is  generally  founded  upon  the  absence  of 
any  positive  engagements  between  the  parties,  in  relation  to  the 
care  with  which  the  goods  shall  be  kept,  or  who  shall  bear  the  loss,  if 
they  are  injured  or  destroyed.  An  express  contract  of  the  parties 
would,  of  course,  dispense  with  the  necessity  of  any  law  upon  the 
implied  contract;  and  a  special  agreement  by  any  bailee,  to  use  more 
or  less  care  than  the  law  would  have  required  from  him,  is  in  general, 
valid  and  binding.  So,  where  particular  orders  are  given  and  assent- 
ed to,  they  form  the  contract  lietween  the  parties,  and  the  law  im- 
plies a  promise  by  the  bailee  to  perform  such  orders.^ 

It  will  be  proper  in  the  first  place,  to  consider  what  is  meant  in 
the  following  pages,  by  common  or  ordinary  diligence,  slight  dili- 
gence, ordinary  negligence,  slight  negligence,  and  gross  neglect; 
although  the  terms  themselves  may,  to  most  minds,  convey  the  true 
meaning,  without  explanation. 

Common  or  ordinary  care  or  diligence,  is  that  degree  of  diligence 
and  care  which  men  of  common  prudence  exercise  in  respect  to 
their  own  concerns. 

vSlight  diligence,  is  that  degree  of  diligence  which  men  liabitually 
careless,  or  possessing  little  prudence,  usually  exercise  in  the  man- 
agement of  their  own  business. 

Ordinary  negligence  is  the  omission  of  that  care  which  men  of 
common  prudence  take  of  their  own  affairs,  or  in  other  words,  it 
is  the  omission  of  ordinary  diligence. 

Slight  negligence  is  the  omission  of  that  diligence  which  very 
circumspect  and  thoughtful  persons  use  in  securing  their  goods  and 
chattels. 

Gross  neglect  is  that  omission  of  care  which  even  the  most  inat- 
tentive and  thoughtless  men  take  of  their  own  concerns;  or  in  other 
words,  it  is  the  omission  of  that  slight  diligence  above  described. 

(a)  0  Eng.  C.  L.  Rep.  233. 


(1)  Tlie  law  in  tliis  Title  will  be  found  in  Story  on  Bailments,  and  Kent's  Com- 
mentarie«. 


238  BAILMENT GRATUITOUS  DEPOSIT,        [P/'Z,  2,    Titled^ 


The  subject  of  bailments  and  the  rights  and   liabilities  of  the 
bailor  and  bailee,  Mill  be  examined  in  the  following  order: 


SECTION  I.  •\VIIEUE  GOODS  ARE  DEPOSITED  TO  BE  KEPT  WITHOUT  REWARD, 

AND  TO  BE  RETURNED  WHEN  THE  BAILOR  SHALL  REQUIRE 
IT. 

II.  AVIIERE  A  PERSON    DELIVERS    GOODS  TO  ANOTHER  TO  BE  CAR- 

RIED WITHOUT  REWARD,  OR  TO  HAVE  SOME  ACT  PERFORM- 
ED ABOUT  THEM  AVITHOUT  REWARD. 

III.  AVHERE  A  PERSON    BORROAVS    AN    ARTICLE   TO  BE  USED  FOR  A 

LIMITED  TIME  AVITHOUT  PAVING  FOR  THE  USE. 

IV.  AVHERE  GOODS  ARE  DELIVERED  BY  A  DEBTOR  TO  HIS  CREDITOR, 

TO  BE  KEPT  AS  A  SECURITY  FOR  A  DEBT  OR  ANY   ENGAGE- 
MENT. 

V.  AVHERE  GOODS,   ANIMALS,  OR  OTHER   THINGS    ARE    DELIVERED 

TO  A  PERSON  TO  USE  FOR  A  TEMPORARY  PERIOD,  AND  FOR 
AVHICH  USE  HE  IS  TO  PAY  A  COMPENSATION. 

VI.  AVHERE  ARTICLES  ARE  DELIVERED  TO  A  PERSON  THAT  HE  MAY, 

FOR  A  COMPENSATION,  BESTOW  WORK  AND  LABOR,  OR  CARE 
AND  PAINS  UPON  AND  ABOUT  THEM. 
A'll.      OF  THE  RIGHTS,  DUTIES,   AND    LIABILITIES    OF    THE    CARRIERS 
OF  GOODS  FOR  HIRE. 

VIII.  OF    THE    RIGHTS,    DUTIES,    AND    LIABILITIES    OF    CARRIERS    OF 

PASSENGP'.RS. 

IX.  OF  THj:  RIGHTS,   DUTIES,   AND  LIABILITIES  OF  INNKEEPERS, 


Sec  I, AVHERE  GOODS  ARE  DEPOSITED  TO  BE  KEPT  AVITHOUT  REAVARD, 

AND  TO  BE  RETURNED  AVHEN  THE  BAILOR  SHALL  REQUIRE  IT, 


This  is  usually  called  a  deposit.  In  respect  to  the  persons  by 
and  between  whom  it  may  be  made,  it  is  only  necessary  to  say,  that 
it  is  not  distinguishal)Ie  from  other  contracts  in  this  respect. 

Infants  and  married  women  cannot  be  bound  as  depositors,  though 
other  persons  may  be  so  bound  to  them.  If  an  infant  receives  a 
deposit,  he  is  bound  to  restore  it,  if  it  is  in  his  possession  or  control, 
but  cannot  be  sued  if  he  lose  it.  He  isj'esponsible  for  any  wrong 
he  does  to  it;  but  he  is  not  responsible  upon  the  contract,  unless  it 
be  a  necessary  contract,  and  manifestly  for  his  benefit. 

Personal  property  of  all  kinds,  and  instruments  of  writing,  may 
become  the  subject  of  deposit, 

A  person  who  holds  property  even  by  a  wrong,  and  without  title, 
may  lawfully  deposit  it,  and  he  is  entitled  to  recover  back  the  same, 
against  every  one  but  the  rightful  owner. 


§1.]  BAILMENT GRATUITOUS  DEPOSIT.  239 

i  The  delivery  of  property  to  the  servant  or  agent,  as  such,  is  a 
delivery  to  the  master  or  principal. 

If  a  person  by  mistake,  or  otherwise,  receive  his  own  property  on 
deposit,  the  bailment  is  destroyed,  and  he  is  not  bound  to  restore 
the  o-oods. 

Where  a  person  takes  property  to  keep,  without  reward  for  so 
doing,  he  is  bound  to  take  reasonable  care  of  it,  and  is  answerable 
only  for  gross  neglect.  What  is  reasonable  care  must  depend  upon 
the  nature  and  quality  of  the  thing,  and  the  circumstances  under 
which  it  is  deposited.  Where  a  person  had  a  deposit  of  money,  and 
put  it  with  his  own  in  a  valise,  on  board  a  steamboat,  and  left  it 
there,  in  an  exposed  situation,  all  night,  and  it  was  stolen,  he  was 
held  responsible,  for  gross  negligence.  But  if  he  had  left  it  for  a 
moment  only,  under  ordinary  circumstances,  and  no  pressing  dan- 
ger, it  would  have  been  otherwise. 

Where  property  is  confided  to  the  care  of  a  particular  person  by 
one  who  may  be  supposed  to  be  acquainted  with  his  character,  the 
care  which  he  would  take  of  his  own  property,  whether  negligent 
or  otherwise,  would  be  the  kind  of  care  required  of  the  bailee. 

But  if  the  bailor  did  not  know  the  habits  of  the  bailee,  or  could 
not  be  presumed  to  trust  to  such  care  as  the  bailee  might  use  about 
his  own  property  of  a  like  nature,  then  the  bailee  Vvill  be  responsi- 
ble if  he  does  not  exercise  ordinary  and  reasonable  care.  What 
would  be  reasonable  care  of  a  bag  of  wheat,  or  a  load  of  wood, 
might  be  gross  neglect  if  the  bag  contained  money,  or  the  load 
were  looking-glasses.  The  nature  of  the  deposit,  its  value,  and  the 
danger  of  loss,  must  be  taken  into  consideration  when  determining 
the  question  of  reasonable  care  or  gross  neglect.  If  the  negligence 
be  such  as  a  person  even  of  slight  diligence  would  not  be  guilty  of, 
the  bailee  is  liable.  If  at  the  time  that  the  goods  are  deposited,  a 
contract  is  made  which  enlarges  or  narrows  the  responsibility  of  the 
bailee,  he  will  be  liable,  according  to  the  terms  of  the  contract. 

When  the  bailee  receives  benefit  from  the  deposit,  he  is  liable  for 
slight  negligence. 

The  same  rule  in  relation  to  the  case  of  goods,  applies  to  a  person 
who  finds  property  that  is  lost.  He  is  only  liable  for  gross  negli- 
gence. 

In  general,  the  person  with  whom  goods  are  deposited  to  be  kept 
without  reward,  has  no  right  to  use  them,  unless  the  goods  are  of 
such  a  kind  that  it  is  necessary  to  use  them  in  order  to  take  care  of 
them,  or  where  it  may  be  fairly  presumed,  from  the  nature  of  the 
goods  or  otherwise,  that  the  owner  consented  that  they  might  be 
used.  When  money  is  locked  up  in  a  chest  and  left  in  the  care  of 
a  person,  it  could  not  be  presumed  that  the  owner  intended  that  the 
money  should  be  taken  out  of  the  chest  and  used.  If  a  milch  cow 
were  deposited  it  might  be  fairly  presumed  that  the  owner  consent- 
ed that  the  cow  should  be  milked.  If  the  use  would  be  for  the 
benefit  of  the  owner,  his  consent  may  be  presumed;  if  to  his  injury, 
or  perilous,  it  ought  not  to  be  presumed. 

The  person  with  whom  property  is  thus  deposited  can  sue  for  and 
recover  in  his  own  name  against  any  wi'ongdoer  who  takes  or  in- 


540  BAILMENT GRATUITOUS  CARRlKIl,  &LC.      [Prt.  2,  Title  9, 

jures  it.  The  owner  may  also  do  the  same,  but  it"  lie  recover,  the 
person  \vith  \vlioin  the  deposit  was  made  cannot  afterwards  sue  for 
the  same  injury.  Tlie  property  must  be  returned,  as  well  as  its  in- 
crease or  [>rofits.  If  an  animal  deposited  brings  forth  young,  the 
latter  are  to  be  delivered  to  the  owner.  If  the  person  who  made 
the  deposit  was  not,  in  fact,  the  owner,  but  come  to  tiie  possession 
of  the  goods  by  theft  or  otherwise,  the  goods  should  not  be  deliv'- 
ered  to  him,  but  to  the  owner.  If  the  bailee  refuse  to  deliver  such 
goods  to  the  owner,  he  will  be  liable  to  him  for  their  value.  If  A 
delivers  goods  to  B,  to  be  delivered  over  to  C,  then  C  hath  the  {)ro- 
perty,  and  may  demand  the  goods;  for  B  has  no  interest  or  claim 
in  the  goods,  except  to  deliver  them,  which  he  undertakes  to  do. 
But,  in  such  case,  there  must  be  a  clear  assent  on  the  part  of  B,  to 
such  undertaking,  and  the  mere  receipt  of  the  goods  will  not  al- 
ways be  sufHcient  to  establish  such  assent.  When  two  or  more 
joint  owners  of  property  deposit  it,  the  bailee  is  not,  in  general, 
bound  to  re-dcliver  the  property,  except  by  the  consent  of  all  the 
parties.  But  this  rule  does  not  ap])ly  where  one  of  the  joint  own- 
ers, without  the  consent  or  knowledge  of  the  other,  made  the  de- 
posit. In  such  case,  the  person  who  deposited  the  property  has  a 
right  to  claim  it  from  the  bailee.  Where  the  deposit  is  made  with 
two  or  more  persons  each  is  liable  for  the  gross  negligence,  and  in 
general,  for  the  fraud  of  the  other. 

The  person  with  whom  property  is  deposited  is  entitled  to  be 
paid  all  necessary  expenses  to  which  he  has  been  subjected  for  its 
preservation.  He  has  a  lien  on  the  property  and  is  not  bound  to 
deliver  it  up  until  such  expenses  are  paid;  but  he  has  no  right  to 
detain  it  for  any  other  debt,  or  on  any  other  account  or  claim,  than 
such  expenses.  If  he  improperly  refuse  to  deliver  the  property 
when  demanded,  he  afterwards  holds  it  at  his  peril,  and  is  answer- 
able to  the  owner  for  all  defaults  and  risks  whatever,  even  if  the 
property  be  afterwards  lost  by  force  or  inevitable  accident. 

Where  money  paid  into  a  bank  is  passed  generally  to  the  credit 
of  the  owner,  and  not  placed  or  received  as  a  special  deposit^  the 
bank  do  not  hold  the  money  as  bailees^  but  the  relation  of  debtor 
and  creditor  is  created,  and  the  money  may  be  applied  by  the  bank 
to  the  payment  of  any  demand  they  may  have  against  the  depositor; 
and  if  the  money  be  lost,  though  without  the  fault  of  the  bank,  the 
depositor  is  entitled  to  payment.* 


Sec.  II. AVHERE  A  PERSON  DELIVERS  GOODS  TO  ANOTHER  TO  BE  CAR- 
RIED Wri'HOUT  REWARD,  OR  TO  HAVE  SOME  ACT  PERFORMED 
ABOUT  THEM  WITHOUT   REWARD. 


Where  there  is  an  understanding  to  do  an  act  without  any  re- 
ward or  consideration,  the  person  who  delivers  or  owns  the  goods 
has  no  right  of  action  if  the  person  omit  to  perform  the  act  about 

(a)  17  Wend.  94. 


§1,2,3,]  BAILMENT BORROWER.  241 

them  as  he  agreed  to  do.  The  contract  is  without  consideration 
and  void.  Although  such  person  is  not  bound  to  do  the  act,  yet  if 
he  proceed  to  do  it  he  will  render  himself  liable  to  an  action  for 
any  injury  arising  from  gross  negligence  in  its  performance.  As, 
where  the  defendant  undertook,  gratis^  to  carry  several  hogsheads 
of  brandy  from  one  cellar  and  deposit  them  in  another,  and  he  did 
it  so  negligently  and  carelessly  that  one  of  the  hogsheads  was  stav- 
ed and  the  brandy  lost,  it  was  decided  that  the  defendant,  not  hav- 
ing used  ordinary  care,  was  liable  for  the  loss. 

A  bailee  who  acts  without  reward,  in  a  case  in  which  neither  his 
situation  nor  employment  necessarily  implies  any  particular  know- 
ledge or  professional  skill,  is  held  to  be  responsible  only  for  bad  faith 
or  gross  negligence.  Thus,  where  a  general  retail  merchant  under- 
took voluntarily,  and  without  reward,  to  enter  a  parcel  of  goods  for 
another,  together  with  a  parcel  of  his  own  of  the  same  sort,  at  the 
custom  house,  for  exportation,  and  he  made  an  entry  under  a  wrong 
name,  whereby  the  parcels  were  seized:  it  was  held  that  he  was 
not  liable  for  the  loss,  inasmuch  as  he  took  the  same  care  of  the 
goods  of  his  friend  as  of  his  own,  and  had  not  any  reward  for  his 
undertaking,  and  he  was  not  of  a  profession  or  employment  that  ne- 
cessarily implied  skill  in  what  he  undertook.  But  if  a  physician 
should  undertake,  gratis^  to  attend  a  wounded  person,  and  should 
treat  him  improperly,  he  would  be  liable  lor  improper  treatment; 
because  his  profession  implied  skill.  If,  however,  the  business  to 
be  transacted  presupposes  a  particular  kind  of  knowledge,  and  a 
person  totally  ignorant  of  the  subject  undertakes  to  do  it,  without 
reward,  it  is  said  that  he  cannot  excuse  himself  on  the  ground  that 
he  performed  the  act  as  well  as  he  was  capable  of  doing  it.(l) 


Sec.  III. WHERE    A    PERSON    BORROWS    AN    ARTICLE    TO    BE    USED    BY 

HIM  FOR  A  LIMITED  TIME  WITHOUT  PAYING  FOR  THE  USE. 


In  such  case,  the  article  or  thing,  such  as  a  horse,  carriage  or  book, 
is  to  be  returned,  and  in  as  good  plight  as  it  was  when  delivered, 
subject  to  ordinary  wear  and  tear  from  its  reasonable  use. 

The  borrower  can  sue  a  wrongdoer  for  taking  or  injuring  the 
property  borrowed. 


(1)  It  may  not  be  ifnproper  here  to  remark,  (hat  justices  of  the  peace  are  often 
called  npoTi  to  ih'aw  instiununts  wliicli  none  but  an  able  lawjtr  can  draft  correct- 
ly. 'I'liey  siiould  be  extremely  cautious  about  entering  upon  tiie  performance  of 
such  an  undertaking-.  It  is  generally  tlie  interest  of  all  parties  to  liave  their  con- 
tracts drawn  by  an  experienced  lawyer,  as  in  the  eTul  it  saves  litigation,  misunder- 
standing and  expense.  Men  do  not,  in  general,  believe  this,  and  will,  perhaps, 
suspect  my  motives  in  giving  this  advice.  To  save  a  small  sum  they  will  run  the 
risk  of  losing  a  large  amount  and  involving  themselves  in  a  law  suit.  Their  short 
sighted  economy  creates  the  principal  income  of  lawyers. 

31 


242  BAILMENT PAWNS  OR  PLEDGES.         [Prt.  2,    Title  9, 

The  borrower  cannot  apply  tlie  tliino;  borrowed  to  any  other 
than  the  very  purpose  and  object  for  which  it  was  borrowed,  nor 
peni)it  any  other  person  to  use  it,  as  such  gratuitous  k)an  is  a  per- 
sonal favor;  nor  keep  it  beyond  ^he  time  limited,  nor  detain  it  as  a 
pledge  for  any  demand  he  ni;'y  otlierwisc  have  against  the  bailor. 
If  he  does  any  one  of  these  things,  and  the  property  is,  by  accident 
or  otherwise,  without  his  fault,  injured  or  lost,  he  will  be  responsi- 
ble to  the  owner. 

A  borrower  is,  in  general,  bound  to  bestow  upon  the  preservation 
of  the  thing  borrowed,  not  merely  ordinary,  but  the  greatest  care, 
and  he  is  responsible  not  only  for  slight  but  for  the  slightest  ne- 
glect. He  is  not  liable  for  an  injury  to,  or  the  loss  of  a  thing,  by 
external  and  irresistible  violence;  as,  if  he  borrow  a  horse  for  a 
journey,  and  he  be  robbed  of  the  horse,  or  the  horse  be  accidentally 
injured,  without  any  neglect  or  imprudence  on  his  part. 

The  owner  cannot  require  gre;iter  care  on  the  part  of  the  bor- 
rower, than  he  had  a  right  to  presume  the  borrower  was  capable  of 
bestowing.  If  a  spirited  horse  be  lent  to  a  raw  youth,  and  whom 
the  owner  knew  to  be  such,  the  circumspection  of  an  experienced 
rider  wiU  not  be  required;  and  what  would  be  neglect  in  one  would 
not  be  so  in  the  other. 

The  ordinaiy  expenses  attendant  on  a  thing  borrowed  must  be 
borne  by  the  borrower,  but  if  the  expenses  were  extraordinary  and 
arose  from  the  unexpected  and  inherent  infirmity  of  the  thing,  or 
were  requisite  for  its  preservation,  without  any  neglect  on  the  part 
of  the  borrower,  the  lender  must  bear  them;  and  the  borrower  has 
a  right  to  retain  the  thing  until  such  expenses  are  reimbursed. 

As  the  bailment  is  gratuitous,  the  lender  may  terminate  it  when 
ever  he  chooses. 


Sec.  IV.  —  WHEN  goods  are  delivered  by  a  debtor  to  his  credi- 
tor, TO  BE  kept  as  a  security  FOR  A  DEBT  OR  EN- 
GAGEMENT. 

Such  delivery  of  goods,  as  a  security  for  a  debt  or  engagement, 
is  generally  known  by  the  name  of  pledging  or  pawning,  and  the 
person  who  delivers  over  the  property  is  called  the  pawnor,  and  he 
to  w^hom  the  pledge  is  given  is  called  the  pawnee.  Negotiable  pa- 
per, as  well  as  personal  property,  may  be  the  subject  of  pledge. 

The  pawnee  is  bound  to  take  ordinary  care  of  the  goods,  and  is 
only  answerable  for  ordinary  neglect.  He,  as  well  as  the  pawnor, 
may  sue  a  wrongdoer  for  taking  or  injuring  the  property;  but  he 
that  brings  the  action  has  the  preference,  and  a  judgment  obtained 
by  one  is  a  bar  to  the  action  by  the  other. 

If  the  property  be  such  as  may  be  injured  by  use,  as  clothes  or 
linen,  then  the  pawnee  cannot  use  tliem.  If  the  pawn  be  of  such 
a  nature  as  to  be  a  charge  upon  the  pawnee,  as  a  horse  or  cow,  he 
may,  in  that  case,  use  the  pawn  in  a  reasonable  manner.     If  he 


§3,4.]  BAILMENT PAWNS  OR  PLEDGES.  243 

derive  any  profits  from  the  pawn,  he  must  apply  those  profits  to- 
wards his  debt,  after  deducting  necessary  charges  and  expenses. 

Extraordinary  expenses  necessarily  incurred  in  the  preservation 
of  the  pledge,  without  the  default  of  the  pawnee,  must  be  borne  by 
the  pawnor. 

The  law  does  not  require  any  thing  extraordinary  of  the  pawnee, 
but  only  that  he  shall  take  ordinary  care  of  the  goods,  and  if  they 
should  then  happen  to  be  lost,  he  may,  notwithstanding,  resort  to 
the  pawnor  for  his  debt;  unless  he  has  refused  to  deliver  the  pawn, 
on  tender  of  the  debt;  for  he  then  becomes  a  wrongdoer,  and  wiU 
be  answerable  at  all  events,  for  any  loss  or  damage  which  may  af- 
terwards happen  to  the  pawn,  whether  by  accident,  or  in  any  other 
manner. 

In  general,  however,  if  the  pawn  be  lost  by  unavoidable  accident 
or  by  superior  foz'ce,  or  perish  from  intrinsic  defect  or  infirmity,  the 
pawnee  is  not  answerable,  if  the  loss  from  such  cause  be  duly  made 
to  appear,  and  no  act  was  done  or  omitted  to  be  done,  inconsistent 
with  the  pawnee's  duty  of  ordinaiy  care  and  diligence. 

Delivery  of  the  property  to  the  pawnee,  is  essential  to  create  a 
pledge;  and  the  pledge  of  movables,  without  delivery,  is  void  as 
against  subsequent  purchasers,  and  generally  as  against  credit- 
ors.(l) 

After  the  debt  is  due  for  which  the  property  was  pledged,  and 
no  contract  was  made  in  relation  to  the  disposition  of  the  property, 
the  pawnee  may,  upon  giving  reasonable  notice  to  the  debtor  to 
redeeni,  sell  the  goods,  or  such  part  of  them  as  will  pay  the  debt. 
The  notice  to  the  party  to  redeem,  is  indispensable.  The  pledge 
covers,  however,  not  only  the  debt,  but  the  interest  upon  it,  and  all 
necessary  expenses  that  may  have  attended  the  possession  of  the 
pledge;  and  the  lien  may,  by  agreement,  be  created  to  extend  to 
cover  subsequent  advances.  But  the  pawnee  cannot  retain  the 
pledge  for  any  other  debt  than  the  one  for  which  the  goods  were 
pledged,  unless  circumstances  appear  which  show  that  such  was 
the  agreement  of  the  parties.  In  a  suit  for  the  pawn  by  the  pawn- 
or against  the  pawnee,  after  due  demand  and  refusal,  the  burden  of 
proof  that  the  pledge  has  been  lost  by  casualty,  without  the  fault  of 
the  pawnor,  rests  on  him.  But  if  a  suit  should  be  brought  against 
the  pawnee  for  a  negligent  loss  of  the  pawn,  then  it  would  be  in- 
cumbent on  the  plaintiir  to  prove  the  negligent  loss. 


(1)  The  difference  between  a  mortt^ag-e  conveyance  of  pi'oods  to  secure  a  debt, 
and  the  pledge  of  g'oods  for  llie  bke  piii'pose,  is  this:  Where  goods  are  mort- 
gag-ed  the  title  passes  conditionally  to  ihe  moi'tg-agee,  and  if  not  redeemed  at  tlie 
time  stipulated,  by  the  payment  of  the  debt,  the  title  becomes  complete  and  ab- 
solute in  him  at  law,  thoug-ii  a  court  of  equity  may  compel  a  redeniption  and  an 
account,  even  though  the  ])arties  agree  that  the  mortgagee  shall  have  the  proper- 
ty mortgaged,  if  the  flebt  be  not  jiaid.  fVrig/tl'a  Jic]).  370.  If  there  is  a  pledge, 
a  special  property  only  passes  to  the  pledgee  at  law,  the  general  property  still 
remaining  in  the  pledger,  as  will  be  seen  hereafter  by  the  text. 


244  BAILMENT HIRER  OF  ARTICLES.  \_PrL  2,  Title  9, 


Sec.  V. — AVHERE  animals,  goods,  or  other  things,  are  delivered 
TO  a  person  to  use  eor  a  temporary  period,  and  for 

WHICH   USE  HE  IS  TO  PAY   A  COMPENSATION. 

The  one  who  lets  tlie  pro])evty  to  hire  is  called  the  letter^  and  the 
person  who  hires  it  the  /lircr.  The  letter  has  no  right  to  disturb 
the  hirer  in  the  use  of  the  thing  during  the  period  Tor  which  it  is 
hired. 

If  the  hirer  apply  the  thing  to  any  other  use  or  detain  it  for  any 
longer  period  than  that  for  which  it  was  hired,  and  the  thing  should 
by  inevitable  accident,  or  otherwise,  be  injured  or  destroyed  while 
thus  detained  or  ini])roperly  used,  the  hirer  would  be  responsible 
for  the  injury  or  loss.  Thus:  where  a  horse  is  hired  as  a  saddle 
horse,  the  hirer  has  no  right  to  use  the  horse  in  a  cart,  or  to  carry 
loads,  or  as  a  beast  of  burden.  So,  where  a  carriage  or  horse  is 
hired  for  a  journey  to  Cleveland,  the  hirer  has  no  right  to  go  with 
it  on  a  journey  to  Cincinnati,  or  beyond  Cleveland.  If  they  are 
hired  for  a  week,  he  has  no  right  to  use  them  for  eight  days. 
While  thus  misused  the  hirer  is  responsible  for  all  damages,  whether 
the  injury  or  loss  to  the  thing  arises  from  an  accident  which  could 
not  have  been  prevenied,  or  in  any  other  manner  whatever. 

But,  in  general,  the  hirer  is  only  bound  to  take  the  same  care, 
and  use  the  thing  hired  in  the  same  manner  as  prudent  men  under 
like  circumstances  use  and  keep  the  same  kind  of  property.  If  a 
man  hires  a  horse  he  is  bound  to  ride  it  moderately  and  to  treat  it 
as  carefully  as  any  man  of  common  discretion  would  his  own,  and 
to  supply  it  with  suitable  food.  And  if  he  do  so,  and  the  horse 
in  such  reasonable  use  is  lamed  or  injured,  he  is  not  responsible  for 
any  damages.  If  two  persons  jointly  hire  a  horse  and  carriage  on 
joint  account,  both  are  answerable  for  any  misconduct  or  negli- 
gence of  either,  in  driving,  or  in  any  other  want  of  proper  care. 
But  it  would  be  otherwise  when  one  is  the  sole  hirer  and  the  other 
merely  invited  to  ride;  the  hirer,  in  such  case,  alone  being  respon- 
sible. 

The  hirer  must  restore  the  article  in  as  good  condition  as  when 
he  received  it,  unless  it  be  deteriorated  by  internal  decay  or  by 
external  means,  without  his  fault;  and  if  the  article  be  injured  or 
destroyed  without  any  fault  or  neglect  on  the  part  (>f  the  person 
who  hired  it,  the  loss  falls  on  the  owner,  for  the  risk  is  with  him. 
But  if  the  thing  hired  be  lost  or  damaged  by  the  hirer  or  by  his 
servants,  acting  under  him,  from  the  want  of  common  and  ordinary 
care  and  diligence,  he  is  responsible.  If,  therefore,  a  hired  horse 
is  ridden  by  the  servant  of  the  hirer  so  immoderately  that  he  is  in- 
jured or  killed  thereby,  the  hirer  is  personally  responsible.  So,  if 
the  servant  of  the  hirer  carelessly  and  improperly  leaves  open  the 
stable  door  of  the  hirer,  and  the  horse  is  stolen  by  thieves,  the 
hirer  is  responsible  therefor.  If  the  servants  of  the  hirer  steal  the 
goods,  he  is  not  liable,  unless  there  are  some  circumstances  which 
show  in  him  a  want  of  due  diligence. 


§5,6.]  BAILMENT ARTICLES  TO  WORK  UP,  &LC.  245 

In  estimating  the  requisite  care  and  diligence,  the  value  and  na- 
ture of  the  property  hired,  and  the  security  possessed  by  the  hirer, 
must  be  taken  into  consideration.  In  case  of  loss  by  robbery,  fire, 
theft,  or  other  accident  of  a  like  nature,  the  hirer  is  not  chargeable, 
unless  it  lias  been  occasioned  by  his  own  fault  or  neglect. 

The  bailee,  when  sued  by  the  bailor  for  the  article  hired,  must 
show  that  he  delivei^ed  it  to  the  plaintiff,  or  account  for  not  doing 
so  by  showing  a  loss  of  it  by  some  violence,  theft,  or  accident. 
When  the  loss  is  shown,  the  proof  of  negligence  or  want  of  proper 
care,  is  thrown  upon  the  plaintiff,  (who  is  the  bailor.)  unless  the 
defendant,  in  showing  the  loss,  has  proved  his  own  fault  or  neglect. 
In  such  case  the  defendant  is  not  bound  to  prove  affirmatively  that 
the  thing  was  not  lost  by  his  neglect,  as  negligence  will  not  be  pre- 
sumed without  proof  The  mere  fact  that  the  thing  was  injured  or 
was  lost  by  violence,  theft,  or  accident,  does  not,  in  general,  show 
that  the  bailee  was  in  fault.  If,  therefore,  a  horse  is  hired  and  in- 
jured during  the  bailment,  the  owner,  in  order  to  sustain  his  action 
against  the  hirer,  on  account  thereof,  must  not  only  show  that  the 
horse  was  injured,  but  the  burthen  of  proving  that  the  injury  arose 
from  the  negligence  of  the  hirer,  also  rests  on  him;  unless  indeed  the 
nature  of  the  injury  shows  of  itself  that  the  hirer  was  in  fault.(l) 

The  statute  of  this  State  provides,*  that  where  any  loan  of  goods 
and  chattels  shall  be  pretended  to  have  been  made  to  any  person, 
with  whom  (or  those  claiming  under  him)  possession  shall  have  re- 
mained for  the  space  of  five  years,  such  goods  and  chattels  shall 
be  deemed  the  property  of  the  person  having  had  such  possession, 
unless  a  reservation  of  the  right  of  such  goods  and  chattels  shall 
have  been  made  to  the  lender,  in  writing,  and  such  writing  shall 
have  been  recorded  within  six  months  from  the  time  of  making  such 
loan,  in  the  recorder's  office  for  the  county  where  one  or  both  of 
the  parties  shall  then  have  resided. 


Sec.  VI. WHERE    articles  are  delivered  to  a  person  THAT  HE  MAY 

FOR  A  COMPENSATION,    BESTOW    WORK    AND    LABOR,    OR   CARE 
AND  PAINS  UPON   AND  ABOUT  THEM. 


Every  man  is  presumed  to  possess  the  ordinary  skill  requisite  to 
the  due  exercise  of  the  art  or  trade  which  he  assumes.  Every  me- 
chanic who  takes  any  materials  to  work  up  for  another,  in  the 
course  of  his  trade,  as  where  a  tailor  receives  cloth  to  be  made  into 
a  coat,  or  a  jeweler  a  jem  to  be  set,  he  is  bound  to  perform  it  in  a 

(a)  Stat.  422,  $3. 


[1]  The  rule  is  different  in  relation  to  proof  of  the  neRlig'ence  of  a  carrier  of 
goods  for  hire.  When  the  carrier  is  sued  for  tlieir  loss,  the  law  presumes  aijainst 
him  in  all  cases,  even  of  accident,  until  he  sliows  the  loss  or  injury  to  have  arisen 
from  the  enemies  of  the  State,  or  the  act  of  God.     7  Cow.  Rep.  500,  note  [a]. 


246  BAILMENT ARTICLES  TO  WORK  UP,  &LC.       [Prt.  2,  Titled^ 

work mnn-1  ike  ninnncv.(2)     If  he  performs  the  work  unskillfuUy,  he 
is  responsible  in  diunages. 


(2)  The  following-  case,  decided  by  the  supreme  court  of  Ohio,  on  the  circuit, 
and  reported  in  Jf'right's  Hep.  229,  will  show  the  rule  by  which  workmen  must 
be  jjoveriicd. 

SOMKUBT    V.     TAPPAW. 

Case  for  unskillfuUy  building-  the  chimneys  of  a  house  so  that  the  plaintiff  had 
to  pull  tiicm  down  and  rebuild  them.     Plea  not  pfuilty. 

On  the  part  of  the  plaintiff,  testimony  was  ort'ered,  that  the  defendant  built  a 
three  story  brick  house  for  him,  and  was  to  do  it  in  a  workman-like  manner.  When 
finished,  and  the  family  had  moved  in,  it  was  found  that  the  chimneys  would  not 
carry  smoke,  and  the  family  had  to  move  out,  the  whole  chimneys  to  be  pulled 
down  and  rebuilt,  at  an  actual  expense  of  about  if  200;  besides  loss  of  rent,  at  the 
rate  of  $500  a  year,  and  vexation.  When  pulled  down,  the  chimney  flues  were 
found  very  irregular,  and  varying-  the  size  of  the  opening  in  different  places.  They 
were  as  large  again  at  the  throat,  as  they  were  five  feet  above,  were  two  or  three 
feet  by  twent)-  inches  at  the  throat,  and  contracted  to  six  or  eight  inches  by  twenty 
at  theceiling  of  the  first  story.  They  could  not  be  remedied  without  pulling  them 
down  to  the  basement.  They  were  pulled  down  and  rebuilt,  and  then  carried 
smoke  well.  The  common  rule  for  such  rooms  as  these,  was  four  feet  openings 
for  tiie  fire  places,  and  12  by  16  inclies  for  flues.  They  could  not  carry  smoke  as 
first  built.      The  plainlilf's  damage  was  estimated  at  more  than  ,'♦3.50. 

On  tlie  part  of  the  defendant,  one  witness  testified  that  the  plaintiff  told  him  he 
was  his  own  architect,  and  several  workers  in  brick  that  they  knew  no  rule  of  the 
trade  for  constructing  chimney  flues,  and  that  thej'  had  known  several  as  irregu- 
lar as  these  were,  carry  smoke  well. 

To  rebut  this  evidence,  the  architect  of  the  building  was  sworn  and  testified  (hat 
the  plaintiff  was  not  the  architect,  and  tliat  the  avchitect  in  the  usual  coui-se  of  the 
trade  had  nothing  to  do  with  constructing  or  directing  the  size  of  the  chimney 
flues.  'I'he  rule  of  the  trade  was  to  preserve  a  uniformity  in  the  size  of  the  flues, 
after  they  were  formed. 

Wright,  J.  to  the  jury.  The  plaintiff  complains  that  the  defendant  agreed  to 
construct  a  house  for  him  in  a  workman-like  manner,  without  any  thing  being  ex- 
pressly stipulated  to  that  effect.  If  he  contract  to  build  a  chimney,  the  legal  effect 
of  the  contract  is  that  he  shall  employ  in  the  work  sufficient  skill,  and  construct 
the  chimney  accoiding  to  the  received  rules  of  the  art  he  professes  to  practice,  in 
order  to  effect  the  desired  end,  which  is  to  carry  off"  the  smoke.  That  end  may 
not  always  be  reached,  even  in  the  ordinary  method.  Smoke  left  to  itself  will  as- 
cend perpendicularly;  but  it  is  liable  to  be  diverted  by  obstructions,  and  by  cur- 
rents and  eddies  of  air.  It  is  claimed  iiy  the  defendant,  that  masons  have  no  rule 
of  constructing  chimney  flues,  and  that  these  flues  were  of  a  kind  which  carried 
smoke  in  some  places,  and  therefore  the  defendant  was  not  liable,  because  the 
■work  was  done  according  to  the  usage  of  the  trade.  It  is  submitted  to  you  to  say 
upon  the  evidence  if  it  be  true,  that  in  tiie  structure  of  chimneys,  there  is  no  rule 
of  the  trade  or  art.  Is  that  true  as  to  any  calling?  Can  any  trade  be  carried  on 
without  some  rides  for  its  government  ?  If  so,  what  does  the  apprentice  learn,  or 
the  master  teach,  as  the  resvard  for  the  service  of  the  apprentice?  What  is  the 
difference  between  the  master  workman,  and  the  mere  tyro?  I  have  said  the  me- 
chanic undertakes  to  bring  to  the  perfiMmance  of  his  work  the  requisite  skill  of 
his  profession,  and  if  he  do  not,  and  fail,  he  is  liable  for  the  consequences.  In  this 
case,  the  obligation  was  to  build  these  ch  mneys  skillfully,  according  to  the  ap- 
proved usages  of  the  trade.  You  will  inquire,  has  he  done  so,  or  has  he  so  negli- 
gently perfoiiTied  the  work,  that  it  was  useless  for  the  purpose  for  which  it  was 
intended?  If  there  has  been  a  failure  in  the  instance  before  you,  owing  to  the 
negligence  or  want  of  skill  of  the  defendant,  he  is  responsil)le  to  the  plaintiff  for 
the  damage  incurred  in  altering  the  chimneys,  the  loss  of  rent,  the  discomfort  he 
has  suffered,  and  the  expense  of  obtaining  redress. 

If,  on  the  other  hand,  you  find  this  work  done  skillfully,  or  according  to  the 


§6.]  BAILMENT ARTICLES  TO  AVORK  UP,  &C.  247 

If  the  same  identical  materials  or  articles  are  to  be  returned  in 
a  new  form  by  the  workman,  after  the  labor  has  been  bestowed 
upon  them,  as  where  wheat  is  delivered  to  be  ground,  and  the  flour 
therefrom  to  be  returned,  the  workman  will  be  liable  for  any  in- 
jury or  loss,  which  may  arise  from  his  fault  or  neglect.  If,  how- 
ever, he  takes  that  care  of  them,  which  a  man  of  common  pru- 
dence, capable  of  governing  a  family,  takes  of  like  articles,  and 
they  are,  notwithstanding,  injured,  burnt,  or  lost,  he  will  not  be 
responsible.  The  workman  is  not  liable  for  slight  neglect,  nor  for 
a  loss  by  inevitable  accident  or  irresistible  force.  In  such  case, 
the  owner  must  pay  for  the  work  already  done  or  bestowed,  unless 
by  express  agreement,  or  the  uniform  custom  of  any  particular 
trade,  no  payment  is  to  be  made  for  any  part  of  the  work  until  the 
whole  is  completed  and  delivered.*  But  where  the  same  identical 
materials  or  articles  are  not  to  be  returned  in  a  new  form,  in  such 
case  the  materials  or  articles  immediately  upon  their  delivery  be- 
come the  property  of  the  person  to  whom  they  are  delivered,  and 
he  must  therefore  bear  the  loss,  from  whatever  cause  it  may  arise. 
As  when  wheat  is  delivered  to  a  miller  to  be  exchanged  for  flour, 
ground  from  such  wheat  as  the  miller  may  choose  to  grind  for  that 
purpose:  now  if  the  wheat  delivered  to  the  miller  is  injured  or  lost, 
no  matter  from  what  cause,  still  the  miller  will  be  bound  to  deliver 
the  flour:  for  the  wheat  became  his  property  the  moment  it  was  de- 
livered.(l) 

So  if  I  deliver  to  you  sheep  or  other  property  for  any  purpose, 
and  you  agree  to  return  the  sajne  sheep  to  me  at  a  future  time,  the 
ownership  of  the  sheep  does  not  pass  to  you;  but  if  the  agreement 
is  that  you  shall  return  to  me  the  same  number  of  sheep  of  like  qual- 
ity, in  that  case  you  become  the  owner  of  the  sheep  delivered,  and 
must  at  all  events  perform  your  contract,  whether  the  sheep  deliv- 
ered by  me  die  or  live. (2) 

(a)  Chit,  on  Con.  170.    3  Burr.  1592.     1  Taunt.  137.     Story  on  Bailm. 


plaintiff's  direction,  he  is  not  entitled  to  a  verdict,  but  must  bear  the  loss  himself. 
The  questions  before  you  are  to  be  decided  solely  upon  the  evidence,  without 
reference  to  the  situation  or  character  of  the  parties,  or  to  out  of  door  rumors. 
"With  tliese  you  have  nothine;  to  do. 

See  also  Wright's  Rep.  570,  where  the  case  is  again  reported. 

(1)  See  2  Kent's  Com.  589,  where  tlie  case  of  Seymour  v.  Brown,  19  Johns. 
Rep.  41,  is  reviewed,  and  seems  to  be  overruled  by  the  case  of  Hard  v.  West,  7 
Cow.  Rep.  752. 

(2)  7  Cow.  Rep.  752.  As  to  cases  where  a  mechanic  finds  a  part  of  the  mate- 
rials, and  his  employer  a  part,  see  Title  32,  Sec.  1. 


248  BAILMENT CARRIERS  OF  GOODS.  [-P^- 2,  Title  9, 

Sec.  VII. OF  THE  RIGHTS,  DUTIES,  AND  LIABILITIES  OF  THE  CARRIERS 

OF  GOODS  FOR  HIRE. 


This  subject  Avill  be  divided  as  follows: 

(-4.)  Who  is  not  a  common  carrier^  and  the  liability  of  a  private 
carrier. 

(B)  Who  is  a  common  carrier. 

(C)  What  are  his  duties. 

(D)  What  ai-e  the  risks  for  which  he  is  liable. 

(E)  When  his  risks  commence  and  terminate. 

IF)  Of  the  effect  of  notices  given  by  common  carriers.,  and  special 

contracts  limiting  their  liahilily  for  the  loss  of  goods. 
(H)  Of  the  lien  of  a  carrier.,  for  freight. 
(/)    How  the  value  of  lost  goods  is  to  estimated. 


(A)  Who  is  not  a  common  carrier.,  and  the  liability  of  a  private 
carrier. 

A  person  who  does  not  exercise  the  business  or  occupation  of 
carrying  goods  for  hire  from  place  to  place  is  not  deemed  a  com- 
mon carrier.  Such  a  person  is  only  bound  to  use  ordinary  dili- 
gence, iind  a  reasonable  exercise  of  skill,  and  of  course  he  is  not 
responsible  for  any  losses  which  might  have  happened  under  the 
circumstances  to  a  man  of  common  and  ordinary  prudence;  unless 
he  expressly  by  the  terms  of  the  contract  took  upon  himself  such 
risk. 

(5)   Who  is  a  common  cai'rier. 

To  bring  a  person  within  the  description  of  a  common  carrier  of 
goods,  he  must  exercise  it  as  a  public  employment;  he  must  under- 
take to  carry  goods  for  persons  generally,  and  he  must  hold  himself 
out  as  ready  to  engage  in  the  transportation  of  goods  for  hire  as  a 
business,  and  not  as  an  accidental  occupation  upon  one  occasion. 
Teamsters,  draymen,  and  porters  who  engage  to  carry  goods  for 
hire  as  a  common  employment  from  place  to  place,  or  from  one 
part  of  a  town  or  city  to  another;  the  owners  and  masters  of  steam- 
boats, river  boats,  canal  boats,  and  others  engaged  in  the  transpor- 
tation of  goods  generally  for  hire,  come  within  the  description  of, 
and  are  liable  as,  common  carriers. 

A  person  who  receives  and  forwards  goods,  taking  upon  himself 
the  expenses  of  transportation  for  which  he  receives  a  compensation 
from  the  owners,  but  has  no  concern  in  the  vessels  or  wagons  by 
which  they  are  transported,  and  no  interest  in  the  freight,  is  not 


§7,(A),(B),(C),(D).]    BAILMENT CARRIERS    OF    GOODS.  249 

deemed  a  common  carrier,  but  a  mere  warehouseman  and  agent.(l) 
In  order  to  charge  a  person  as  a  common  carrier,  it  is  not  neces- 
sary that  a  specified  sum  should  be  agreed  on  for  the  hire;  for  if 
none  is  agreed  on,  he  is  entitled  to  a  reasonable  compensation. 

Where  several  persons  are  engaged  as  partners  in  the  business 
of  common  carriers,  and  by  contract  between  them,  one  finds  horses 
and  drivers  for  certain  distances,  and  another  supplies  them  for  the 
remaining  distance,  they  are,  notwithstanding,  to  be  treated  as 
partners,  and  jointly  responsible  throughout  the  whole  course  of  the 
rout.  The  same  principle  applies  to  different  partners  in  a  coach 
office,  who  are  owners  or  partners  in  different  coaches  employed  at 
the  same  office  on  the  common  business,  though  they  have  not  a 
common  interest  in  each  coach.  All  of  them  will  be  held  respon- 
sible for  any  contract  made  by  the  keeper  of,  or  agent  at,  the  stage 
office. 

Common  carriers  are  not  only  responsible  for  their  own  acts,  but 
also  for  those  of  their  servants  and  other  persons  in  their  employ- 
ment. 

(C)   What  are  the  duties  of  a  common  carrier. 

He  must  take  the  utmost  care  of  the  goods  from  the  time  of  re- 
ceiving them;  obey  the  directions  of  the  owner  in  respect  to  them; 
carry  them  safely  to  the  proper  place  of  destination,  and  make  a 
right  delivery  of  them  there,  according  to  the  usage  of  trade,  or  the 
course  of  business.  If  the  carriage  is  by  water,  he  is  bound  to  pro- 
vide a  ship  or  canal  boat  that  is  tight  and  strong,  suitably  equipped, 
with  a  proper  crew;  to  proceed  without  deviation  to  the  proper 
port;  to  expose  the  goods  to  no  improper  hazards;  and  to  guard 
against  all  injuries  incident  to  the  property,  by  reasonable  care  in 
preserving  the  goods  from  the  effects  of  storms,  rain,  bad  air,  leak- 
ages and  thefts. 

When  necessary  expenses  are  incurred  by  a  carrier  about  the 
preservation  of  the  goods  from  extraordinary  peril,  not  properly 
belonging  to  the  carrier,  he  is  entitled  to  re-payment.  Thus,  if  a 
sudden  flood  or  storm  should  do  injury  to  the  goods,  and  require 
some  immediate  expense  for  their  preservation,  the  carrier  would 
be  bound  to  incur  it,  and  would  be  entitled  to  reimbursement. 
When  the  expenses  arise  from  an  injury  for  which,  in  case  of  loss, 
the  carrier  would  be  responsible  for  the  goods,  he  cannot  recover 
back  from  the  owner  of  the  goods  such  expenses. 

(J))   What  are  the  risks  for  which  a  common  carrier  is  liable. 

The  law  books  abound  with  strong  cases  of  recovery  against 
common  carriers  when  there  was  no  fault  on  their  part.  Courts 
have  adopted  a  safe  and  salutary  rule  upon  this  subject,  without 
bending  to  popular  sympathies,  or  yielding  to  the  hardships  ot  a 
particular  case.     Common  carriers  have  an  opportunity  in  conso- 


(1)   As  to  the  responsibility  of  Warehousemen,  see  page  262. 
32 


250  BAILMENT CAURIKUS    OF    GOODS.  [P/l.  2,  Title  9, 

quence  of  their  remote  situation  from  the  owners  of  goods,  to  ruin 
those  wlio  confide  in  tliem,  and  that  too  in  so  secret  a  manner  that 
the  fraud  could  not  l)e  discovered.  A  general  rule  must  necessarily 
be  established  in  relation  to  their  liabilities,  and  that  rule  niust  be 
a  stern,  rigid,  and  simple  one,  to  protect  the  public,  and  prevent 
the  necessity  of  going  into  circumstances  impossible  to  be  unrav- 
eled. The  rule,  therefore,  is  well  established,  that  as  soon  as  goods 
are  delivered  to  a  common  carrier,  he  becomes  an  insurer  of  their 
safety,  and  is  answerable  for  every  loss  or  injury  which  does  not 
arise  from  the  act  of  God,  or  public  enemies.*  If  armed  persons 
enter  the  steamboat,  schooner,  or  canal  boat,  and  plunder  it  of  the 
goods;  or  they  be  stolen;  or  be  burnt,  or  taken  by  robbers,  without 
the  fault  of  the  common  carrier,  and  where  not  a  shadow  of  neglect 
is  imputable  to  him,  still  he  is  liable  to  the  owner  for  their  value. 
Hard  as  this  rule  may  appear,  if  it  were  not  firmly  enforced  by 
courts,  it  would  be  easy  for  a  carrier  to  contrive  by  means  not  to 
be  detected,  to  be  robbed  of  his  goods  in  order  to  share  the  spoil. 
If  lost  or  injured  by  the  grossest  negligence  of  the  carrier  or  his 
servants,  or  stolen  by  them,  the  owner  would  be  unable  to  prove  ei- 
ther of  these  causes  of  loss.  His  witnesses  would  be  the  carrier's  ser- 
vants, and  they  would  willingly  excuse  their  masters  and  themselves. 

llobbers,  thieves,  mobs,  and  rioters,  do  not  come  within  the  de- 
nomination of  PUBLIC  ENEMIES.  By  enemics,  is  understood  those 
public  enemies  with  whom  the  nation  is  at  open  war.  Common 
carriers  are  not  liable  for  delay,  injury,  or  loss  occasioned  by  ad- 
verse winds,  the  founderous  situation  of  roads,  or  a  breach  in  the 
canal.  But  if  occasioned  by  their  taking  a  greater  quantity  of 
commodities  than  they  had  the  means  of  transporting,  or  by  unskill- 
ful navigation  of  their  vessel,  or  any  other  circumstances  not  the 
immediate  act  of  God,  or  of  the  enemies  of  the  State,  then  they  are 
chargeable,'' 

The  ACT  OF  Gorj  denotes  natural  accidents;  such  as  lightnings^ 
earthquakes,  and  tempests,  and  not  accidents  arising  from  the  neg- 
ligence of  man  —  the  expression  means  something  in  opposition  to 
the  act  of  man.  If  a  ship  on  a  lake  is  forced  upon  a  rock  or  the 
shore,  by  an  adverse  w^ind,  under  prudent  and  careful  management, 
and  the  goods  lost,  this  would  be  deemed  the  act  of  God. 

It  has  already  been  said  that  the  rights,  risks,  and  liabilities  of 
the  parties  may  be  altered  or  changed  by  the  express  agreement  of 
the  jiarties.  It  is  usual  to  accompany  the  shipment  of  goods  with 
a  bill  of  lading,  in  which  is  in  general  inserted  an  acknowledgment 
by  the  carrier  of  having  received  the  goods  in  good  condition,  and 
contains  the  contract  between  the  carrier  and  the  person  who  s-hip- 

f)ed  the  goods.  This  contract  being  in  writing,  cannot  be  en- 
arged,  explained,  or  changed,  by  verbal  ])roof  of  what  the  under- 
standing or  intention  of  the  parties  was,  before  or  at  the  time  of 
making  the  bill  of  lading,  though  verbal  evidence  may  be  received 
to  show  the  common  usage  of  trade  under  the  words  or  terms  of 
the  bill  of  lading.'^     So  the  carrier  may  show,  notwithstanding  the 

(a)  Wright's  Rep.  193.     1  Wil.  Rep.  149.  (rt  Wright's  Rep.  195. 

(b)4HBr.  4-  J.  291. 


§7,(D),(E).]  BAILMENT CARRIERS  OF  GOODS.  251 

bill  of  lading,  that  the  goods  were  not  in  good  condition,  or  the 
damage  complained  of  existed  at  the  time  he  received  them.^ 

Bills  of  lading  on  Lake  Erie  generally  specify  that  the  goods  shall 
be  delivered  in  good  condition,  "the  danger  of  the  Lake  and  waves 
only  excepted."  Bills  of  lading  on  the  Ohio  riv^er,  except  'Hhe 
dangers  of  the  river  and  unavoidable  accidents," 

It  has  been  said,  that  by  "perils  or  dangers  of  the  sea,"  (lake  or 
river.)  are  only  meant  such  accidents  as  happen  by  the  act  of  God, 
and  public  enemies.  When  merchandise  received  by  a  carrier  to 
be  delivered  in  good  order,  the  "dangers  of  the  river  excepted," 
gets  w^et  by  accident,  the  carrier  is  not  liable  for  the  damage,  if  it 
arose  from  the  dangers  of  the  river  and  not  from  his  neglect.  But 
if  in  such  case  the  goods  w'ould  be  less  injured  by  being  dried,  and 
no  exertion  is  made  to  dry  them,  the  carrier  is  liable  for  the  dam- 
age.'' 

If  the  situation  of  a  rock,  shallow,  or  snag  is  generally  known, 
and  the  boat  is  not  forced  upon  it  by  adverse  winds  and  tempests, 
the  loss' must  be  imputed  to  the  fauft  of  the  master,  and  not  to  the 
dangers  of  the  lake  or  river.  But  if  the  boat  is  forced  upon  such 
rock,  shallow,  or  snag,  or  upon  the  shore,  or  into  collision  with  an- 
other boat,  by  adverse  winds  or  tempests,  or  if  the  shallow  or  snag 
is  not  generally  known,  or  is  of  recent  formation,  or  existence:  in 
all  these  cases  the  loss  is  to  be  attributed  to  the  dangers  of  the  lake 
or  river.  If  an  injury  or  loss  arise  from  another  boat  being  care- 
lessly or  designedly  run  upon  the  boat  of  the  carriei',  the  carrier 
is  liable  to  the  owner  of  the  goods,  and  must  look  for  his  remedy 
to  the  person  who  carelessly  or  wantonly  injured  the  goods  by  the 
collision.*^ 

Goods  thrown  overboard  to  save  the  vessel  in  a  tempest  from 
foundering,  and  to  preserve  the  lives  of  the  crew,  is  a  loss  by  the 
act  of  God,  though  accomplished  by  the  immediate  agency  of 
man.(l)  If  a  carrier  deviate  from  the  usual  course  of  the  navi- 
gation, and  a  loss  ensue,  he  will  not  be  excused  w^hile  out  of  the 
course,  even  for  a  loss  resulting  from  the  act  of  God  or  public 
enemies.''  So  if  there  be  two  ways  known  to  the  navigation,  and 
one  more  perilous  than  the  other,  he  takes  the  most  perilous  at  his 
own  risk. 

(E)  As  to  the  comme7icement  and  termination  of  the  risk  of  com~ 
mon  carriers. 

To  render  a  carrier  responsible,  there  must  be  an  actual  delivery 
to  him,  or  to  his  servants,  or  to  some  other  person  authorized  to  act 

(a)  4  Oliio  Rep.  346,  Wriglit's  Rep.  240.  (c)  Wright's  Rep.  741. 

(b)  1  McBride's  Bep.  81.  -    {&)  Wright's  Rep.  193;  1  Wil.  Rep.  149. 

(1)  In  such  case,  ship,  cargo,  and  fi-eiglit,  which  are  saved,  are  compelled  to 
contribute  according-  to  their  value  to  repay  the  common  loss.  If,  however,  goorls 
are  shipped  wilii  an  undcrstanclin,!^  that  they  are  to  be  stowed  on  deck,  and  are 
necessarily  tlirown  overboard  in  a  storm,  the  carrier  is  exonerated,  and  the  own- 
er is  not  entitled  to  contribution  for  the  loss,     filory  on  Bailment,  339.  371, 


252  BArLMEXT CARRIKRS  OF  GOODS.  [^Plt.  2,  TUk  9, 

in  his  hehnlf.  If,  according  to  the  usage  of  business,  it  be  a  suffi- 
cient deHvery  to  leave  the  goods  on  the  dock,  by  or  near  the  car- 
rier's boat,  (which  is  the  case  on  the  canals  in  the  state  of  New 
York");  yet  to  render  the  delivery  in  such  case  complete,  there  must 
be  notice  given  to  the  carrier,  that  the  goods  arc  there.  The  lia- 
bility of  the  carrier  for  the  goods,  commences  from  the  time  he  ac- 
cepts the  goods,  and  the  us;ige  of  the  business  may  determine  in 
what  such  acceptance  consists. 

There  are,  in  general,  warehouses  erected  at  the  place  where 
goods  are  to  be  shipped,  and  in  which  the  goods  are  placed  before 
transportation.  A  warehouseman,  who  receives  goods  on  deposit 
for  hire,  is  only  liable  for  such  injuries  and  losses  as  arise  from  his 
fault  or  neglect.  If  the  goods  are  taken  or  lost  by  fire,  robbery,  or 
other  accident,  over  which  he  had  no  control,  and  which  did  not 
arise  from  his  carelessness,  he  will  not  be  responsible.  He  is  only 
bound  to  take  such  care,  and  use  such  diligence  as  men  of  ordinary 
prudence  exercise  under  like  circumstances.'' 

But  a  warehouseman  is  sometimes  the  carrier  of  the  goods  which 
he  receives.  In  such  case,  if  the  deposit  of  the  goods  in  the  ware- 
house is  made  to  facilitate  the  carriage  by  the  warehouseman,  and 
is  subordinate  to  the  transportation,  he  then  receives  the  goods  as 
the  carrier,  and  is  responsible  as  such.  On  the  other  hand,  if  a  per- 
son is  at  the  same  time  a  common  carrier,  and  forwarding  merchant, 
and  he  receives  goods  into  his  warehouse  to  be  forwarded  accord- 
ing to  the  future  orders  of  the  owners,  he  is  only  liable  as  a  ware- 
houseman. In  all  such  cases,  the  material  point  to  ascertain  is, 
whether  the  goods  were  received  by  the  party  in  his  character  of 
warehouseman  or  common  carrier. 

As  soon  as  goods  have  arrived  at  their  proper  place  of  destina- 
tion, and  are  deposited  there,  and  no  further  duty  remains  to  be 
done  by  the  carrier,  his  responsibility  as  such  ceases.  If  a  carrier 
between  Butlalo  and  Dayton  receives  goods  to  be  carried  from 
Buffalo  to  'Da}ton,  and  thence  to  be  forwarded  by  a  distinct  con- 
veyance to  Cincinnati,  as  soon  as  he  arrives  with  tlie  goods  at  Day- 
ton, and  deposits  them  in  his  warehouse,  his  responsibility  as  carrier 
then  ceases,  for  that  is  the  end  of  his  duty  as  such.  He  then  be- 
comes, as  to  the  goods,  a  mere  warehouseman,  undertaking  for  their 
further  transportation.  But  he  would  be  chargeable  in  such  case 
as  a  common  carrier,  for  any  loss  during  a  deposit  in  any  ware- 
house between  BufTalo  and  Dayton. 

So  long  as  the  carrier  retains  the  possession  of  the  goods  as  such, 
or  is  to  perform  any  further  duty,  either  by  custom  or  contract  as 
carrier,  he  is  responsible  for  the  safety  of  the  goods,  and  whether 
he  is  to  make  a  personal  delivery  of  the  goods  to  the  owner,  or  de- 
posit them  in  a  warehouse  or  other  place  where  the  owner  resides, 
will  depend  upon  the  contract,  or  the  local  custom  or  usage  of 
trade.  If  the  carrier  is  induced  by  the  fraud  or  deceit  of  a  stran- 
ger to  deliver  the  goods  to  a  wrong  person,  this  will  not  exonerate 

(a)  6  Cowcn'g  Rpp.  7o".  (b)  7  Cow.  Rop.  497. 


§7,  (E),(F),(H).]  BAILMENT CAP-RFERS  OF  GOODS.  253 

the  carrier  from  liability  to  the  owner,  who  may  sue  in  an  action  of 
trover  for  their  value.'' 

Whenever  the  carrier  imdertakes  to  carry  the  goods,  he  cannot 
exempt  himself  from  responsibility  by  transferring  the  goods  to  an- 
other carrier,  or  by  sending  them  by  another  conveyance.  His 
contract  is  deemed  a  contract  for  personal  cafe  and  diligence  by 
himself  or  his  own  servants.  It  is  also,  as  has  been  already  stated, 
the  duty  of  the  carrier  to  employ  a  vehicle  suitable  for  the  trans- 
portation, and  if  by  water  to  prepare  a  boat  reasonably  strong,  and 
equipped  for  the  voyage. 


(F)  Of  the  nature  and  effect  of  notices  given  by  common  carriers^ 
and  special  contracts^  limiting  their  liability  for  the  loss  of 
goods. 


In  the  case  of  Jones  v.  Yoorhees^  it  is  said  by  the  court:  '•'•The 
rule  is  now  understood  to  be  settled  in  England,  that  neither  a  no- 
tice brought  home  to  the  owner  of  the  goods,  nor  a  special  agree- 
ment, however  solemn  the  form  in  which  it  may  be  made,  is  per- 
mitted to  restrict  the  common  law  liability  of  the  carrier,  either  by 
land  or  water.  Nothing  excuses  him  from  the  pei-formance  of  his. 
contract,  but  the  act  of  God^  or  the  acts  of  the  public  enemies  of  the 
country.'"'  "It  is,  however,  sufficient  for  us  to  say,  in  the  present 
case,  that  common  carriers  cannot  limit  their  responsibility  by  no- 
tice brought  home  to  the  oiviier.,  for  that  is  the  point  raised  on  the 
special  verdict;  but  any  substantial  distinction  between  a  notice 
brought  home,  and  an  express  special  contract  to  restrict  rcsponsi^ 
bility,  is  not  easily  perceived. 


(H)  Of  the  lien  of  the  carrier  for  freight. 


The  carrier  is  entitled  to  a  lien  on  the  goods  for  his  hire  or 
freight,  and  is  not  bound  to  deliver  them  until  he  receives  it,  unless 
he  has  entered  into  some  special  contract,  by  which  it  is  waved. 
The  consignor  or  person  who  sends  the  goods  is  ordinarily  bound  to 

(a)   \r,  Rii(?.  C.  I,.  T?op.  47.  (h)   1  Wilcox's  Uep.  145. 


254  BAILMKNT CARRILRS  OF  GOODS.  [^Pfl.  2^   Title  9^ 

pay  for  the  hire,  or  freight;  but  \vhcne\er  the  person  to  whom  the 
goods  nre  sent,  who  is  called  the  consignee,  engages  to  pay  it.  he 
may  also  be  responsible.  It  is  usual  for  the  bill  of  lading,  (which  is 
the  receipt  of  the  carrier  for  the  goods,  and  the  contract  for  their 
transportation.)  to  s.tate  that  the  goods  are  to  be  delivered  to  the 
consignee,  or  to  his  assigns,  he  or  they  paying  freight,  in  which  case 
the  consignee  and  his  assigns,  by  accepting  the  goods,  become  bound 
to  ]iay  the  freight.  And  the  fact  that  the  consignor  is  also  liable  to 
pay  the  freight,  will  not  in  such  case  make  any  diilerence.  Jf  coods 
contracted  to  be  carried  to  a  particular  place  and  safely  delivered, 
were  either  in  fact  negligently  lost,  or  safely  conveyed  and  deliv- 
ered to  a  wrong  person,  though  by  mistake,  or  if  any  other  act  was 
done  rendering  a  delivery  of  them  impracticable,  the  carrier  is  en- 
titled to  no  freight.* 

If  the  carrier  demands  nn  unreasonable  amount  for  freight,  the 
owner  of  the  goods  should  tender  what  is  right,  and  may  then  sue 
the  carrier  for  the  value  of  the  goods,  before  a  justice,  if  it  does  not 
exceed  one  hundred  dollars.  The  lien  of  the  carrier  ceases  after 
the  tender.  There  is  no  action  or  remedy  before  a  justice,  that 
will  enable  the  owner  to  obtain  possession  of  goods  wrongfully  ta- 
ken or  detained  by  a  carrier  or  other  person.  The  owner  can, 
however,  in  such  case,  obtain  possession  of  the  property  by  suing 
out  from  the  court  of  common  pleas  a  writ  of  replevin. (1) 

(a)  6  Bar.  and  J.  400;  Cliitty's  Con.  152,  notes  (3d  ed.) 


(1)  Difficulties  often  arise  between  the  owner  and  carrier  when  the  goods  have 
been  injured,  or  their  transportation  unnecessarily  delayed:  the  owner  wislies  the 
d;im:ig-es  to  be  deducted  from  the  freig-ht,  and  the  carrier  refuses  to  deliver  the 
goods  unless  tiie  wliole  freiglit  is  paid.  In  some  cases,  and  especially  where  the 
damage  or  delay  has  not  arisen  from  the  negligence  of  the  carrier  who  last  re- 
ceived the  goods,  the  owner  would  not  pei-h:ips  have  a  right  to  deduct  the  damage 
from  tile  fi-diglit.  But  wlien  tlie  carrier  who  delivers  the  goods  has  himself  been 
guilty  of  the  negligence,  justice  and  public  policy  seem  to  require  the  adoption  of 
the  principle,  tliat  the  owner  shall  be  entitled  to  tlie  possession  of  the  goods,  en- 
tirely discliarged  from  the  lien  for  freigiit,  upon  his  tendering  to  the  carrier  the 
balance  of  tlie  freiglu,  if  any,  after  a  reasonable  deduction  for  the  damages  sus- 
tained by  a  loss,  injury,  or  delay.  Tiiis  rule  gives  tiie  owner  an  opportunity  to 
obtain  immediate  possession  of  the  goods  by  a  writ  of  replevin,  and  he  would 
alwajs,  with  a  view  to  prevent  the  faihu-e  of  his  action,  tender  a  sufficient  amount 
to  discliarge  tlie  lien.     See  1  Camp.  Rep.  68.      Chitty's  Con.  277. 


§7(H),(I),8,(A).]  BAILMKNT CARRIERS    OF    PASSENGERS.  255 

(1)  How  the  value  of  lost  goods  is  to  be  estimated. 


The  goods  lost  by  the  carrier  must  be  estimated  according  to  their 
value  at  the  place  where  they  were  to  be  delivered  by  him,  and 
the  owner  would  be  entitled  in  such  case,  to  recover  the  value 
so  estimated,  with  interest,  after  deducting  the  amount  of  the  freight 
unpaid. 


Sec.    VIII. OF    THE    RIGHTS,    DUTIES,    AND    LIABILITIES    OF     CARRIERS 

OF    passengers;    and    HEREIN, 


(A)  Their  duties  in  the  commencement  of  the 
journey. 

(B)  Their  duties  on  the  progress  of  the  journey. 

(C)  The  termination  of  the  journey. 
(Z))  Liabilities  of  passenger  carriers. 
(E)   The  rights  of  j^asscnger  carriers. 


{A)    Their  duties  in  the  coiamcncement  oj^  the  journey. 

The  first  and  most  general  obligation  on  their  part  is  to  carry 
passengers  whenever  they  offer  themselves,  and  are  ready  to  pay 
for  their  transportation.  This  results  from  their  setting  themselves 
up,  like  innkeepers,  farriers,  and  other  carriers,  for  common  public 
employment.  They  are  no  more  at  liberty  to  refuse  a  passenger, 
if  they  have  sufficient  room  and  accommodation,  than  an  innkeeper 
has  a  guest.  If  several  persons  have  contracted  to  go  in  company 
inside,  the  carriers  have  no  right  to  separate  them  into  difierent 
parts  of  the  coach  outside  and  inside. 

In  the  next  place  they  are  bound  to  provide  coaches  reasonably 
strong  and  sufficient  for  the  journey,  with  suitable  harness,  trap- 
pings, and  equipments;  and  to  make  a  proper  examination  thereof 
previous  to  each  journey. 

In  the  next  ])lace  they  are  bound  to  provide  careful  drivci's  of 
reasonable  skill  and  good  habits  lor  the  jouincy;  and  to  employ 
horses,  which  are  steady,  and  not  vicious,  or  likely  to  endanger  the 
safety  of  the  passengers.  In  the  pithy  language  of  an  eminent 
Judge,  it  may  be  said,  that  "  the  coachman  must  have  competent 
skill;  he  must  be  well  acquainted  with  the  road  he  imdertakes  to 
drive;  he  must  be  provided  with  steady  horses,  acoachand  harness 
of  sufficient  strength  and  properly  made,  and  also  with  lights 
by  niglit.     If  there  is  the   least  lailure  in  any  of  these  things,  the 


256  BAILMENT CARRIERS    OF    PASSENGERS,  [P/'^.  2,  T?7/t' 9, 

duty  of  the  coach-proprietors  is  not  fulfilled,  and  they  arc  responsi- 
ble for  any  injury  or  damage,  that  happens."' 

In  the  next  j^lace  they  are  bound  not  to  overload  the  coach  either 
with  passengers  or  luggnge;  :ind  to  take  cai'e,  tiiat  the  weight  is 
suitably  adjusted,  so  tliat  the  coach  is  not  top-lieavy  and  made  liable 
to  overset. 

In  the  next  place  they  are  bound  to  receive  and  to  take  care  of 
the  usual  luggage,  which  it  is  customary  to  allow  every  passenger 
to  carry  for  the  journey. 

And  in  all  these  cases  they  are  not  only  bound  for  their  own  acts, 
but  for  the  acts  of  their  servants  and  agents  in  their  employ,  and 
also,  in  cases  of  partnership,  for  the  acts  of  their  partners. 

{B)   Their  duties  on  the  progress  of  the  journey. 

Passenger  carriers  are  bound  to  stop  at  the  usual  places,  and 
allow  the  usual  intervals  for  refreshment  of  the  passengers;  and 
they  cannot  at  their  mere  caprice  vary  or  annul  these  accommoda- 
tions; for  every  passenger  is  understood  to  contract  for  the  usual 
reasonal)le  accommodations. 

They  are  bound  to  make  use  of  all  the  ordinary  precautions  for 
the  safety  of  passengers  on  the  road.  This  involves  a  considera- 
tion of  the  duties  of  the  coachman  in  driving  on  the  road.  If  he  is 
guilty  of  any  rashness,  negligence,  or  misconduct,  or  is  unskillful, 
or  deviates  from  the  acknowledged  custom  of  the  road,  the  pro- 
prietors will  be  responsible  for  any  injury  resulting  from  his 
acts.(l)  Tlius,  if  the  driver  drives  with  reins  so  loose  that  he  can- 
not govern  his  horses,  the  proprietors  of  the  coach  will  be  ansv.er- 
able.  So  if  there  is  danger  in  a  part  of  the  road,  or  in  a  partic- 
ular passage,  and  he  omits  to  give  due  w^arning  to  the  passen- 
gers. So  if  he  takes  the  wrong  side  of  the  road,  and  an  accident 
happens  from  want  of  proper  room.  So  if  by  any  incaution  he 
comes  in  collision  with  another  carriage.  In  short,  he  must  in  all 
cases  exercise  a  sound  and  reasonable  discretion  in  traveling  on  the 
road,  to  avoid  dangers  and  difficulties,  and  if  he  omits  it,  his  princi- 
pals are  liable.  And  the  liability  of  the  coach  proprietors  will  be 
the  same,  although  the  injury  to  the  pnssenger  is  caused  by  his  own 
act,  as  by  leaping  from  the  coach,  if  there  is  real  danger,  and  it 
arises  from  the  careless  conduct  of  the  driver.(2) 


(1)  See  statutes  of  this  State  in  relation  to  the  duties  and  liabilities  of  stage  pro- 
prietors, and  stage  drivers,  Slut-  864. 

(2)  There  are  in  England,  tliree  customary  rules  or  directions  for  driving;  first, 
that  in  meeting,  each  parly  shuU  bear  or  keep  to  tlie  left.  The  rule  in  America  is 
the  reverse,  that  each  party  shall  bear  or  keep  to  tlie  riglit.  Secondly,  that  in  pass- 
ing, the  foremost  person  bearing  to  the  left,  the  other  siiall  pass  cmi  to  the  off  side. 
Thirdly,  that  in  crossing,  the  driver  shall  bear  to  the  left  hand  and  pass  beliind  the 
other  carriage.  But  the  rule  in  England  is  not  inflexible,  that  the  driver  sliall,  in 
all  cases  pass  another  carriage  on  the  offside.     He  may,  if  the  street  or  road  is  very 


§8,  (B),(C),(D).]     BAILMENT CARRIERS  OF  PASSENGERS.  257 


(C)   The  termiiuxtibn  of  the  journeij. 

In  all  cases  the  coach  proprietors  are  bound  to  carry  the  passen- 
gers to  the  end  of  the  journey,  and  to  put  them  down  at  the  usual 
place  of  stopping;  and  if  that  is  an  inn  yard,  it  is  not  sufficient  to 
put  them  down  on  the  outside  of  the  gateway  of  the  inn.  If  they 
agree  to  take  a  passenger  to  a  particular  place,  this  also  becomes 
obligatory  on  thein.  And  if  the  custom  of  the  coach  is  to  carry  the 
passengers  to  their  own  houses  or  lodgings  in  a  jDarticular  place, 
that  must  be  conformed  to. 


(D)  As  to  the  Uabilitics  of  passenger  carriers. 

These  naturally  flow  from  their  duties.  As  they  are  not,  like 
common  carriers  of  goods,  insurei-s  against  all  injuries  except  by 
the  act  of  God,  or  public  enemies,  the  inquiry  is^  naturally  present- 
ed. What  is  the  nature  and  extent  of  their  responsibility?  It  is  cer- 
tain that  their  undertaking  is  not  ;ui  undertaking  absolutely  to  con- 
vey safely.  They  are  bound  only  to  t/ae  care  and.  diligence  in  the 
performance  of  their  duty.  The  passenger  carrier  binds  himself  to 
carry  safely  those  whom  he  takes  into  his  coach,  as  far  as  human 
care  and  foresight  ivill  go;  that  is,  for  the  utmost  care  and  diligence 
of  very  cautious  persons. 

But  passenger  carriers,  not  being  insurers,  are  not  responsible 
for  accidents,  where  all  reasonable  skill  and  diligence  has  been  em- 
ployed. When  every  thing  has  been  done  which  human  prudence 
can  suggest,  accidents  may  happen.  The  lights  may  in  a  dark 
night  be  obscured  by  fog;  the  horses  may  be  frightened;  the  driver 
may  be  deceived  by  the  sudden  alteration  of  objects  on  the  road; 
the  coach  may  be  upset  accidentally  by  striking  another  vehicle  or 
meeting  with  an  unexpected  obstruction:  in  all  these  and  the  like 
cases,  if  there  is  no  negligence,  the  coach  proprietors  are  exonerated. 

A  common  carrier  of  passengers  and  their  baggage  is  responsible 
for  the  baggage  if  lost,  although  no  distinct  price  be  paid  for  its 
transportation ;'^  and  although  they  give  actual  notice  to  a  traveler 
that  his  baggage  is  at  his  own  risk.''  Where,  however,  the  baggage 
consists  of  an  ordinary  traveling  trunk,  in  which  there  is  a  large 
sum  of  money.,  such  money  is  not  considered  as  included  under  the 
term  baggage.^  so  as  to  render  the  carrier  responsible  for  it.  It 
seems,  however,  he  would  be  liable  for  money  in  the  trunk,  not  ex- 

(a)  9  Wend.  85;  1  Wliea.  Sehvyn,  :301,  «.  1.  (b)  1  Wilcox's  Rep.  145. 


broatl,  go  on  llie  iicnr  side.  So  if  tliere  is  no  otlicr  carriag-e  on  llie  road,  wliose 
passag'e  may  be  intt'rnipted,  tlie  dvivci"  is  not  hound  to  keep  the  left  side  of  the 
road  accordint^  to  the  rule  of  the  road.  In  sucli  cases,  he  niaj''  go  on  either  side 
of  the  road,  as  lie  pleases.  And  if  the  driver  is  on  liie  wrong  side  of  tlie  road, 
the  carrier  is  not  answerable  for  any  accident,  unless  there  is  some  negligence  on 
the  part  of  the  driver. 
.3.3 


258  BA1LME>'T CARRIERS  OF  PASSENGERS.     [Pri.  2,   Title  ^, 

ceeding  an  amount  ordinarily  carried  for  traveling  expenses •,'(!)  and 
for  a  watch  therein,  the  trunk  being  considered  a  proper  place  to 
carry  a  watcii.'' 

(E)  The  j-igJifs  of  passenger  carriei's. 

Aa  they  are  under  obligations  to  carry  passengers,  and  cannot 
properly  refuse  them,  when  they  have  acconmiodations,  so  on  the 
other  hand  they  are  entitled  to  be  secure  of  their  reward  or  compen- 
sation. They  have,  therefore,  a  right  to  demand  and  to  receive 
their  fare  at  the  time  when  the  passenger  engages  his  seat;  and  if 
he  refuses,  they  may  fill  up  the  place  with  other  passengers,  who 
are  ready  to  make  the  proper  deposit. 

The  passenger  carrier  also  has  a  lien  upon  the  baggage  of  the 
passenger  for  his  fare  or  passage  money;  but  not  on  the  person  of 
the  passenger,  or  the  clothes  he  has  on. 

In  the  preceding  remarks  our  attention  has  been  principally 
drawn  to  the  conduct  of  passenger  carriers  on  land.  But  there  ai'e 
some  rules  of  an  analogous  nature,  which  have  been  adopted  for  the 
regulation  and  government  of  passenger  anh  carrier  vessels  in 
inland  navigation,  as  well  as  upon  the  ocean,  which  deserve  notice, 
as  they  may  furnish  grounds  of  responsibility  or  excuse  for  lossey, 
which  have  arisen  in  tlie  course  of  their  voyages,  from  the  accidents, 
or  collisions,  or  rivalries  of  navigation. 

Thus,  in  Ohio,  various  positive  regulations  have  been  adopted  by 
the  legislature,  in  regard  to  tbe  conduct  of  canal  boats;  and  if  the 
master  of  any  boat  deviates  from  them,  and  any  injury  occurs,  he 
and  the  owners  will  not  only  be  liable  to  the  statute  penalties,  but 
they  will  also  be  bound  to  make  good  all  losses  and  injuries  sus- 
tained thereby.  It  seems  to  be  a  general  regulation,  that  freight 
boats  shall'  afford  every  facility  to  the  passage  of  packet  or  pas- 
senger boats,  as  well  through  the  locks  as  every  where  else  on 
the  canal.  Therefore,  if  a  packet  boat  arrives  at  a  lock  while  a 
freight  boat  is  waiting  for  it  to  be  emptied,  the  freight  boat  is  bound 
to  yield  the  first  passage  into  the  lock  to  the  packet  boat.  And 
if,  by  any  undue  resistance  on  the  part  of  the  freight  boat,  an  in- 
jury occurs,  it  must  be  borne  by  the  master  and  owners  of  the 
latter. 

As  to  the  collision  of  boats:  In  the  first  place  it  may  happen 
without  blame  being  imputed  to  either  party;  as  where  the  loss 
is  occasioned  by  a  storm.  In  that  case  the  loss  must  be  borne  by 
the  party  on  whom  it  happens  to  light;  the  other  not  being  res- 
ponsible to  him  in  any  degree.  Secondly,  a  misibrtune  of  this 
kind  may  arise,  M'here  both  parties  are  to  blame;  where  there  has 
been  a  want  of  due  diligence  or  of  skill  on  both  sides.     In  such  a 

(a)  9  Wend.  85;  1  Wliea.  Sclwyn  301,  n.  I.         (b)  1  Wilcox's  Rep.  145. 


(1)  As  to  tlie  loss  of  bagg-age  wlien  notice  has  been  given,  see  page  253. 


§8,  (E),  9.]  BAILMENT INNKEEPERS.  259 

case  the  rule  of  law  is,  that  the  loss  must  be  apportioned  between 
them,  as  having  been  occasioned  by  the  fault  of  both  of  them. 
Thirdly,  it  may  happen  by  the  misconduct  of  the  suffering  party 
only;  and  then  the  rule  is,  that  the  sufferer  must  bear  his  own  bur- 
then. Lastly,  it  may  have  been  the  fault  of  the  ship  which  ran. 
down  the  other;  and  in  this  case  the  injured  party  would  be  enti- 
tled to  an  entire  compensation  from  the  other. 

Where  there  has  been  some  fault  or  neglect;  but  on  which  side  the 
blame  lies  is  inscrutable,  or  left  by  the  evidence  in  a  state  of  uncer- 
tainty, the  rule  is  to  apportion  the  loss  betv.^een  the  two  vessels. 

In  all  cases  of  collision  the  essential  question  is,  whether  proper 
measures  of  precaution  are  taken  by  the  vessel,  wiiich  has  unfortu- 
nately run  down  the  other.  This  is  partly  a  question  of  nautical 
usage,  and  partly  a  question  of  nautical  skill.  If  all  the  usual  and 
customary  precautions  are  taken,  then  it  is  treated  as  an  accident, 
and  the  vessel  is  exonerated.  If  otherwise,  then  the  offending  ves- 
sel and  its  ov/ners  are  deemed  responsible.  Some  rules,  however, 
which  probably  had  their  origin  in  the  customs  of  navigation,  are 
now  adopted  as  positive  rules  of  law.  Thus,  the  law  imposes  upon 
the  vessel,  having  the  wind  free,  the  obligation  of  taking  proper 
measures  to  get  out  of  the  way  of  a  vessel,  that  is  close  hauled,  and 
of  showing  that  it  has  done  so;  otherwise  the  owners  will  be  res- 
ponsible for  any  loss  which  ensues.  Therefore,  a  vessel  sailing  icith 
the  wind  must  give  way  to  one  sailing  by  the  wind;  and  the  vessel 
sailing  by  the  wind  is  not  obliged  to  alter  her  course.  Another  rule 
is,  that  the  master  of  a  vessel  entering  a  port  or  river,  where  other 
vessels  are  lying  at  anchor,  is  bound  to  make  use  of  all  proper 
checks  to  stop  the  head  way  of  his  vessel  in  order  to  prevent  acci- 
dents; and  if  from  want  of  such  precautions  a  loss  ensues,  he  and  his 
owners  will  be  responsible.  Another  rule  is,  that  when  vessels  are 
crossing  eacli  other  in  opposite  directions,  and  there  is  the  least 
doubt  of  their  going  clear,  the  vessel  on  the  starboard  tack  is  to  per- 
severe in  her  course,  while  that  on  the  larboard  is  to  bear  up,  or 
keep  more  awa.y  before  the  wind.  And  in  respect  to  steamboats, 
as  th^y  do  not  receive  their  impetus  from  sails,  but  from  steam,  they 
are  capable  of  being  kept  under  better  command;  and  therefore  it 
seems,  from  their  greater  power,  they  ought  always  to  give  way  in 
favor  of  a  vessel  using  sails  only. 

Sec.  IX., —  OF  THE  rights,  duties,  and  liabilities  oj'  innkeepers. 


Innkeepers  are  bound  to  take,  not  ordinary  care,  but  uncommon 
care  of  the  goods  and  baggage  of  their  guests;  and  they  are  respon- 
sible for  the  acts  of  their  servants  and  domestics,  as  well  as  for  the 
acts  of  other  guests.  If,  therefore,  the  goods  or  baggage  of  his 
guest  are  damaged  in  his  inn,  or  are  stolen  from  it  by  his  servants 
or  domestics,  or  by  another  stranger  guest,  he  is  bound  to  make  res- 
titution. And  the  innkeeper  cannot  exonerate  himself  from  this 
res)>onsibility  by  a  refusal   to  take  any  cnre  of  the  goods,  because 


260  BAILMENT INNKIOEPKltS.  [Pi't.  2^  Title  % 

there  are  suspected  persons  in  his  liou.se,  for  whose  conduct  he  can- 
not be  answerable,  for  the  law  will  not  permit  him  thus  to  escape  from 
his  proper  iluty.  It  iuiLi;ht  iiuleed  bo  otherwise,  if  he  refused  achnit- 
tance  to  a  traveler,  because  he  really  had  no  room  fjr  him,  and  the 
traveler  nevertheless  should  insist  upon  enterinsr  and  placing  his 
baggage  in  a  chamber  without  the  imikeeper's  consent.  But  an 
innkeeper  is  not,  if  he  has  suitable  room,  at  liberty  to  refuse  to  re- 
ceive a  guest,  who  is  ready  and  able  to  pay  him  a  suitable  compen- 
sation. On  the  contrary  he  is  bound  to  receive  him,  and  if  upon 
false  pretences  he  refuses,  he  is  liable  to  an  action. 

It  is  not  necessary  to  prove,  that  the  goods  have  been  lost  by  the 
negligence  of  the  innkeeper;  for  it  is  his  duty  to  provide  honest 
servants  and  honest  inmates,  and  to  exercise  an  exact  vigilance 
over  all  persons  coming  into  his  house  as  guests  or  otherwise.  Nor 
is  it  necessary,  that  the  goods  should  be  in  his  special  keeping;  but 
it  is  generally  sufficient,  that  they  are  in  the  inn.  Rigorous  as  this 
rule  may  seem,  and  hard  as  it  actually  may  be  in  one  or  two  par- 
ticular instances,  it  is  founded  on  the  great  principle  of  public  utili- 
ty, to  which  all  private  considerations  ought  to  yield.  For  travel- 
ers, who  must  be  numerous  in  a  rich  and  commercial  country,  are 
obliged  to  rely  almost  implicitly,  on  the  good  faith  of  innholders, 
who  have  frequent  opportunities  of  associating  with  rullians  and 
pilferers,  while  the  injured  guost  would  seldom  or  never  obtain  legal 
proof  of  such  combinations,  or  even  of  their  negligence,  if  no  actual 
fraud  had  been  committed  by  them. 

But  innkeepers  are  not  responsible  to  the  same  extent  as  common 
carriers.  The  loss  of  the  goods,  while  at  an  inn,  will  be  presump- 
tive evidence  of  negligence  on  the  part  of  the  innkeeper  or  of  his  do- 
mestics. But  he  may,  if  he  can,  repel  this  presumption,  and  show, 
that  there  has  been  no  negligenjce  whatsoever;  or,  that  the  loss  is 
attributable  to  the  proper  negligence  of  the  guest,  or  that  it  has  been 
occasioned  by  inevitable  casualty,  or  by  superior  force.  Thus,  al- 
though a  common  carrier  is  liable  for  all  loses  occasioned  by  an  arm- 
ed mob  (not  being  jjublic  enemies.)  an  innkeeper  would  not  be  liable 
for  such  a  loss;  nor  would  he  be  liable  (it  should  seem)  for  a  loss  by 
robbery  and  burglary  by  persons  from  without  the  inn. 

And  the  innkeeper  will  be  exonerated,  also,  by  showing,  that  the 
guest  has  been  robbed  by  his  own  servant,  or  by  one,  who  came  to 
the  inn  as  a  companion  of  the  guest.  But  it  will  be  no  excuse  for 
the  innkeeper  in  case  of  a  loss  by  theft,  that  he  was  sick  or  insane, 
or  absent  from  home  at  the  time:  for  he  is  bound,  in  such  cases,  to 
provide  faithful  domestics  and  agents. 

Having  thus  seen,  what  is  the  general  responsibility  imposed 
upon  innkeepers  by  law,  it  may  be  proper  to  consider;  1st,  who 
are  deemed  innker-pors  in  the  sense  of  that  law^;  2d,  what  are  their 
general  rights  and  duties;  3d,  w^ho  are  to  be  deemed  properly  guests; 
4th,  in  respect  to  what  goods,  and  under  what  circumstances,  the 
liability  of  innkeepers  attaches;  5th*,  and  lastly,  under  what  circum- 
stances they  are  exonerated  b.y  operation  of  law,  or  by  the  acts  of 
the  parties. 


§9.]  BAILMENT INNKEEPERS.  261 

1st,  Who  are  deemed  innkeepers.  An  innkeeper  may  be  defined 
to  be  the  keeper  of  a  common  inn  for  the  lodging  and  entertain- 
ment of  travelers  nnd  passengers,  their  horses  and  attendants,  for  a 
reasonable  compensation.  It  must  be  a  common  hin,  that  is,  an 
inn  kept  for  travelers  generally,  and  not  merely  for  a  short  season 
of  the  year,  and  for  select  persons,  who  are  lodgers.  But  it  is  not 
necessary  that  the  party  should  put  up  a  sign  as  keeper  of  an  inn. 
It  is  sufficient,  if  in  fact  he  keeps  one.  In  a  recent  case  it  was  said, 
that  "  The  true  definition  of  an  inn  is  a  house  where  the  traveler  is 
furnished  with  every  thing  which  he  has  occasion  for  whilst  on  his 
way."'  But  the  keeper  of  a  mere  coffee-house  is  not  deemed  an 
innkeeper.  And  a  person  who  keeps  a  mere  private  boarding 
house,  or  lodging  house,  is  in  no  just  sense  an  inkeeper. 

2d,  As  to  the  rights  and  duties  of  innkeepers.  An  innkeeper  is 
bound  to  take  in  all  travelers  and  wayfaring  persons,  and  to  enter- 
tain them,  if  he  can  accommodate  them,  for  a  reasonable  compen- 
sation; and  he  must  guard  their  goods  with  proper  diligence.  But 
he  is  not  bound  by  law  to  furnish  his  guests  with  rooms  to  show 
their  goods,  but  only  witii  convenient  lodging  rooms  and  lodging. 
And  the  law  invests  him  wifh  some  peculiar  privileges:  for  he  has 
a  lien  upon  the  goods,  and  also,  as  it  should  seem,  upon  the  person 
of  his  guest,  for  his  compensation.  But  the  horse  of  a  guest  can  be 
detained  only  for  his  ov^n  meal,  and  not  for  the  meal  and  expenses 
of  the  guest. 

3d,  Who  are  to  be  deemed  guests.  As  inns  are  instituted  for 
passengers  and  wayfaring  men,  a  neighbor  or  friend,  who  is  no 
traveler,  but  comes  to  the  inn  at  the  request  of  the  innkeeper,  and 
lodges  there,  is  not  deemed  a  guest.  But  where  a  traveler  comes 
to  the  inn,  and  is  accepted,  he  i>ecomes  instantly  a  guest.  And  it 
was  held  by  three  Judges  against  Lord  Holt,  that  if  a  trav'eler 
leaves  his  horse  at  an  inn,  and  lodges  elsewhere,  he  is  to  be  deemed 
a  guest.  But  not  if  he  leaves  goods,  for  which  the  innkeeper  re- 
ceives no  compensation.  And  where  a  person  came  to  an  inn  with 
a  hamper  of  hats,  and  went  away,  and  left  them  there  for  two  days, 
and  in  his  absence  they  were  stolen,  it  was  held,  that  he  was  not 
to  be  deemed  a  guest.  The  lengtli  of  time  tliat  a  man  is  at  an  inn, 
makes  no  difference;  whether  he  stays  a  week,  or  a  month,  or 
longer;  so  always,  that  he  retains  his  character  as  a  traveler.'  But 
if  a  person  comes  upon  a  special  contract  to  board,  and  sojourn  at 
an  inn,  he  is  not  in  the  sense  of  the  law  a  guest;  but  a  boarder. 

4th,  As  to  their  liability.  Innkeepers  are  liable  only  for  tho 
goods  which  are  brought  within  the  inn.  If,  therefore,  an  inn- 
keeper at  the  request  of  his  guest  sends  his  horse  to  pasture,  and 
the  horse  is  stolen,  the  innkeeper  is  not,  as  such,  liable  for  the 
loss.  But  if  theguest  does  not  request  it,  but  the  innkeeper  does 
it  of  his  own  accord,  he  is  liable  ibr  the  loss.  However,  it  has 
l)een  said  th;it  lliis  rule  requires  some  qualifications;  lor  if  it  is  the 
common  custom  of  the  coimtry,  (as  it  is,  in  the  summer  season,  in 
some  parts  of  America.)  to  put  the  horse  in  such  a  case  to  pastui*e, 
the  implied  consent  of  thf  ow-ner  may  be  fairly  presumed,  if  he 


262  BAILMENT INNKEEPERS.  [Prt.  2,    7V^  9, 

knows  of  the  custom.  And  the  common  usage  of  the  country  must 
have  great  weight  in  all  such  cases.  in  ihe  country  towns  in 
America,  it  is  very  common  to  leave  carriages  under  open  sheds 
all  night  at  inns;  and  also  to  leave  the  stable  doors  o})en  or  unlocked. 
Under  such  circumstances,  if  a  horse  or  carriage  should  he  stolen, 
it  woulil  deserve  consideration,  how  far  the  innkeeper  would  be  lia- 
ble, as  the  traveler  might  be  presumed  to  consent  to  the  ordinary 
custom. 

A  delivery  of  the  goods  into  the  custotty  of  the  innkeeper  is  not 
necessary  to  charge  him  with  them:  for  although  the  guest  doth  not 
deliver  them,  nr  acquaint  the  innkeeper  with  tliem,  still  the  latter  is 
bound  to  pay  for  them,  if  they  are  stolen,  or  carried  away;  even 
though  the  person  who  stole  them  or  carried  them  away  is  un- 
known. Nor  is  it  any  excuse  for  the  innkeeper,  that  he  delivered 
to  the  guest  the  key  of  the  chamber  in  which  he  is  lodged,  and 
that  the  guest  left  the  chamber  door  open.  But  if  the  in  keeper  re- 
quires of  the  guest,  that  he  should  put  his  goods  into  a  particular 
chamber  under  lock  and  key,  and  that  then  lie  will  warrant  their 
safety,  and  otherw^ise  not;  and  the  guest,  notwithstanding,  leaves 
tliem  in  an  outer  court,  where  they  are  taken  away,  the  innkeeper 
will  be  discharged.  And  although  an  innkeeper  rehises  to  take 
charge  of  goods  for  a  party  until  another  day;  yet,  if  he  admits  him 
as  a  guest  into  his  inn  for  temporary  refreshment,  and  the  goods  are 
stolen,  while  he  is  there,  the  innkeeper  will  he  responsible  for  the 
loss.  If,  indeed,  the  innkeeper  had  received  the  goods,  and  the 
party  had  gone  away,  and  afterwards  the  loss  had  occurred,  the 
innkeeper  would  have  been  liable  only  as  a  bailee  or  depositary; 
and  if  he  had  refused  to  receive  the  party  as  a  guest  he  would  not 
have  been  liable  at  all. 

Where  the  goods  are  delivered  at  the  usual  place  for  such  goods 
at  the  inn,  the  innkeeper  is  chargeable  with  them,  although  not 
strictly  within  the  inn;  as  if  wheat  in  a  sleigh  is  put  into  the  outer 
house  appurtenant  to  the  inn,  and  used  for  such  purposes,  and  after- 
wards is  stolen,  the  innkeeper  is  liable  for  the  loss. 

Ahhough  the  general  language  of -the  Writ  in  the  Register  is, 
that  the  innkeeper  is  liable  ibr  ihe  goods  and  chatteh  of  the  guest, 
which  would  seem  not  to  extend  to  deeds,  obligations  and  choses 
in  action;  yet  the  latter  are  held  moveables  within  the  custom  to 
bind  the  innkeeper.  13ut  the  hmkecper  is  liable  only  for  the  safe 
custodv  of  personal  property  of  his  guest.  He  is  not  responsible 
for  any  tort  or  injury  done  by  his  servants  or  others  to  the  person 
of  his  guest,  without  his  own  co-operation  or  consent. 

5th.  What  circumstances  will  exonerate  the  innkeeper.  By  the 
common  law,  as  laid  down  in  Calye's  case,  (8  Rep.  32,)  an  innkeep- 
er is  not  chargeable,  unless  there  is  some  default  in  him,  or  in  his 
servants,  in  the  well  and  safe  keeping  and  custody  of  his  guest's 
goods  and  chattels  within  his  common  inn;  but  he  is  bound  to  keep 
them  safe  without  any  stealing  or  purloining.  This  doctrine,  how^- 
ever,  is  to  be  understood  with  this  qualification,  that  the  loss  will 
be  deemed  prima  facie  evidence  of  negligence;  and  that  the  inn- 


§§.]  BAILMENT INNKEEPERS.  26^ 

keeper  cannot  exonerate  hiinsclt'but  by  positive  proof,  that  the  loss 
was  not  by  means  of  any  person,  for  whom  he  is  responsible. 

The  innkeeper,  however,  may  be  exonerated  in  divers  other 
ways;  as,  lor  example,  by  showing  that  the  guest  has  taken  upon 
himself  exclusively  the  custody  of  his  own  goods,  or  has,  by  his 
ov^'n  neglect,  exposed  them  to  the  peril.  Thus,  where  a  traveler 
had  some  boxes  of  jewelry,  and  desired  a  room  to  himself  for  the 
purpose  of  opening  and  showing  it  to  customers;  and  he  had  the 
room  assigned  to  him,  and  the  key  delivered  to  him,  with  directions 
about  locking  the  door;  and  he  used  the  room  accordingly,  and 
unpacked  his  jewelry,  and  he  afterwards  went  away,  and  left  the 
room  for  some  hours,  leaving  the  key  in  the  lock  on  the  outside  of 
the  door,  and  some  of  his  boxes  of  jewelry  were  stolen,  it  was  held 
that  the  innkeeper  was  not  liable,  and  that  the  guest,  by  accepting 
the  key  of  the  room  under  the  circumstances,  had  superseded  the 
liability  of  the  innkeeper  to  take  care  of  the  goods.  So,  where  a 
guest  at  an  inn  deposits  his  goods  in  a  room,  and  makes  use  of  it 
as  a  warehouse  for  them,  having  the  exclusive  possession  of  it,  he  is 
understood  to  take  upon  himself  the  exclusive  charge  of  his  own 
goods.  The  same  principle  will  apply,  where  a  guest  at  an  inn, 
instead  of  confiding  his  goods  to  the  innkeeper,  of  choice  commits 
them  exclusively  to  the  custody  of  another  person,  living  at  the 
inn. 

But  if  the  habit  of  the  servants  at  an  inn  is  to  place  the  guests' 
goods  in  their  bed-rooms;  and  a  guest  should  request  his  to  be  car- 
ried into  the  comnTOn  commercial  room,  to  which  travelers  in  gen- 
eral resort,  and  they  are  there  stolen,  the  innkeeper  will  neverthe- 
less be  held  responsible  for  the  loss,  unless  the  innkeeper  has  given 
notice  to  the  guest  that  he  will  not  be  responsible,  unless  the  goods 
are  put  into  the  bed-room.  The  mere  exercise  of  a  choice  by  the 
guest,  not  objected  to,  though  for  his  own  convenience,  if  he  does 
not  acquire  an  exclusive  possession  thereby,  will  not  discharge  the 
innkeeper  from  his  general  responsibility. 

Innkeepers  are  responsible  for  the  loss  of  goods,  only  when  they 
have  been  received  by  them  in  that  character.  If  they  hav©  be- 
come bailees  generally,  they  are  then  liable  only  according  to  the 
nature  of  the  particular  bailment  or  contract. 


TITLE  X. 


BANKS. 


A  SUIT  for  or  ajjalnst,  a  hank  should  he  hroiii;;ht  in  its  corpoi-ate 
name,  thus:  '••The  O'lio  Life  Insurance  and  Trust  Company.'''' 

When  suit  is  hrought  to  recover  money  due  from  a  hank,  upon 
notes  or  hills  issued,  and  for  a  sum  made  cognizahle  before  a  jus- 
tice, judgment  must  he  rendered  for  the  amount  of  the  hills,  with 
interest  u])on  them  from  the  time  they  were  presented  for  payment, 
or  irom  the  time  the  bank  ceased  ;ind  refused  to  redeem  its  hills 
with  s])ecie.* 

The  olRcer  serving  the  execution,  must  go  to  the  banking  house 
and  demand  payment  of  the  amount  of  the  judgment,  interest  and 
costs;  and  if  payment  he  not  immediately  made,  the  olFicer  must 
levy  upon  the  bank  notes,  money  or  other  chattels  which  he  may 
find  in  tlie  banking  house,  or  elsewhere,  the  property  of  the  judg- 
ment debtor,  and  proceed  thereon,  as  in  other  cases.''  If  the  mo- 
ney is  not  made  by  the  first  execution,  the  justice,  on  request,  must 
deliver  to  the  plaintiff' or  his  agent  a  certified  transcript  of  his  doc- 
ket, so  that  the  creditor  may  proceed  against  thebank  in  the  court 
of  common  pleas.*^ 

A  hank  may  institute  a  joint  suit  agninst  the  drawers  and  indor- 
sers  of  notes,  bills  and  bonds,  and  the  defendants  may  each  make  a 
separate  defence;  if  a  bank,  in  such  case,  institutes  separate  suits, 
it  can  recover  no  costs,  hut  each  party  pays  his  own  costs.**  The 
bills  of  the  bank  must  be  received  in  payment  of  the  judgment,  if 
tendered  on  the  execution,  and  the  suit  was  brought  by  the  bank,  or 
for  its  use.'* 

Banks  must  have  sums  counted,  or  sufficient  servants  to  count 
them,  so  that  a  demnnd  of  ordinary  magnitude  may  he  paid  within 
the  banking  hours  of  the  day;  and  a  bank  cannot,  at  its  option,  pay 
out  in  small  pieces  when  it  has  large  on  hand.  If  the  bank  thus 
creates  an  unreasonable  delay,  it  amounts  to  a  refusal  of  payment.^ 

When  a  bank  charter  declares  that  it  shall  not  take  more  than 
six  per  cent  interest  upon  its  loans,  a  contract  for  a  greater  rate  of 
interest  is  void,  and  the  bank  shall  lose  both  interest  and  principal.*" 

(a)  Stat.  147,  $43;  and  (c)  Itl.  153,  $62.  (e)  8  Cow.  Rrp.  88. 

see  Stat.  129,  $13.  (d;  Id.  149,  $51.  (Ii)  8  Ohio  Rep.  280. 

(b)  Id.  147,  $45. 


TITLE  XL 


BASTARDY. 


The  statute,  entitled  an  act  for  the  maintenance  and  support  of 
illegitimate  children,*  provides,  that  on  complaint  made  to  any  jus- 
tice of  the  peace  in  this  State,  by  any  unmarried  woman  resident 
therein,  who  shall  hereafter  be  delivered  of  a  bastard  child,  or 
being  pregnant  with  a  child,  which,  if  boi'n  alive,  may  be  a  bastard, 
accusing  on  oath,  or  affirmation,  any  person  of  Ijeing  the  father  of 
the  child,  the  justice  shall  take  such  accusation  in  writing,(l)  and 
thereupon  issue  his  warrant,  directed  to  the  sheriff,  coroner,  or  con- 
stable, of  any  county  of  the  State,  commanding  him  forthwith  to 
bring  such  accused  person  before  said  justice,  to  answer  to  such 
complaint;(2)  and  on  the  return  of  such  warrant,  the  justice,  in  the 

(a)  Stat.  155. 


(1)  The  form  of  the  affidavit  may  be  as  followsj 
The  State  of  Ohio, county,  ss: 

Personally  appeared  before  me,   G H ,  a  justice  of  the  peace  in  and 

for  said  county,  A B ,  an  unmarried  woman,  resident  within  said  county, 

and  made  complaint  under  oath,  that  [on  the day  of ,  she  was  delivered 

of  a  bastard  child;  or  say,  if  the  fact  be  so,  that  she  is  now  pregnant  with  a  child, 
which,   if  bora  alive,  will  be  a  bastard,]  and  that  C— —  D'  is  the  father  of 

said  child. 

[Signed,]  A B , 

The  above  complaint  was  reduced  to  writing  by  ipp,  and  sworn  to  and  subscri- 
bed before  me,  this day  of- ,  A.  D.  — 

G H ,  J.  P. 

(2)  The  warrant  may  be  in  the  form  following: 
The  State  of  Ohio,  County,  ss. 

To  I J ,  Sheriff  [or  Coroner]  of  the  county  of ,   [or  Constable  of 

the  township  of ,  in  the  county  of ,  as  the  case  may  be,"]  greeting: 

Whereas,  A B ,  an  unmarried  woman,  resident  of  said  county  of , 

hath  tills  day  made  complaint  on  oath  before  me,  G H ,  a  justice  of  the 

peace  in  and  for  the  township  of ,  in  said  county,    [that  on  the day  of 

,  in  the  year ,  she  was  delivered  of  a  bastard  child;  or  say,  if  the  fact  be 

so,  that  she  is  now  pregnant  of  a  child,  which,   if  born   alive,  will  be  a  bastard,] 

and  that  C U is  the  father  of  said  child;  and  which  accusation  was  then 

reduced  to  writing  by  me: 

Yoii  are  therefore  commanded  to  take  the  body  of  said  C D ,  if  he  be 

found  in  your  county,  and  bring  him   forthwith  before  me,  at  my  office  in  said 
township,  to  answer  to  said  complaint:  and  for  so  doing  this  shall  be  your  warrant. 

Given  under  my  hand  and  seal,  this  ■  day  of ,  A.  D. 

G H ,  J.  p.  [Seal.-] 

This  writ  is  served  and  returned  in  the  same  manner  as  a  capias,  for  which,  see 
pages  34  to  37. 

34 


266  BASTARDY.  [Prt.  2, 

presence  of  the  accused  pei-son,  shall  examine  the  complainant 
under  oath,(l)  rospcctinf!;  the  cause  of  complaint;  and  such  accused 
person  shall  be  nlloweil  to  ask  the  coini>lainant,  when  under  oath, 
any  question  he  may  think  necessary  for  his  justification;  all  of 
wliich  (luestiims  and  answers,  together  with  every  other  part  of  the 
examination,  must  be  reduced  to  writint:;  by  tlie  justice.(2)  If,  on 
such  examination,  the  j^arty  accused  should  pay,  or  secure  to  be 
paid  to  the  complainant,  such  sum  or  sums  of  money,  or  property, 
as  she  may  agree  to  receive,  in  full  satisfaction,  and  shall  further 
give  bond  to  the  overseers  of  the  poor  of  the  township  in  which 
such  complainant  shall  reside,  and  their  successors  in  oliice,(3)  con- 

(1)  Form  of  the  oath  to  be  administered  to  the  female: 

You  do  solcnml)'  swear,  in  the  presence  of  Almig-hty  God,  the  searclier  of  all 
hearts,  that  you  will  testify  the  truth,  the  whole  truth,  and  nothing-  but  the  truth, 

in  the  cause  now  in  hearing-  ag-ainst  C D ,  upon  your  complaint,  and  this 

you  do  as  you  will  answer  to  God. 

If  the  woman  has  been  convicted  of  any  crime  which  would  by  law  disqualify 
her  from  being  a  witness  in  any  other  case,  her  testimony  cannot  be  received. 
Slat.  157,  §5.     As  to  what  crimes  disqualify,  see  page  58. 

(2)  The  questions  and  answers  may  be  entered  on  the  docket,  or  on  a  loose 
sheet,  with  the  following-  caption: 

The  examination,  under  oatli,  of  A R ,  an  unmarried  woman,  resident 

of county,  t:iken  by  and  before  me,  G II ,  J.  p-,  of townsliip, 

county,  on  the day  of ,  in  tlie  year ,  upon  her  complaint  of 

bastardy,  against  C D ,  he  being  then  present  in  custody  before  me,  upon 

the  warrant  issued  by  me  in  the  premises. 

Question  by  the  Justice. — Are  you  now,  and  if  so,  how  long  have  you  been  res- 
ident of county? 

Jinawer.- — . 

Quest. — Are  you  married  or  unmarried? 

Ans. . 

Quest. — Have  you  been  delivered  of  a  bastard  child?  If  so,  when?  When  was 
it  begotten,  and  who  is  the  father  of  the  child? 

Jlns. . 

Quest.—  ? 

Quest,  by  defendant ^ 

Ans.- 


No  further  questions  were  asked. 


(3)  Form  of  Bond  to  the  overseers  of  the  poor: 


H- 


Know  all  men  by  these  presents,   that  we,  C D ,  T S and 

J —  M ,  are  held  and  bound  unto  the  overseers  of  the  poor  of township, 

. county,  Ohio,  [here  insert  the  names  of  the  overseers  for  the  time  being,]  and 

their  successors   in  office,    in  the  sum  of dollars,  for  the  payment  of  which 

we  jointly  and  severally  bind  ourselves.  Sealed  with  our  seals,  and  dated  this 
day  of ,  in  the  year : 

The  condition  of  the  above  obligation  is  such,  that,  whereas,  the  above  bound 

C D has  been  arrested  upon  a  warrant  issued  by  G H ,  a  justice 

of  the  peace  in  and  for  said  county,  on  the  complaint  of  A B ,  an  immar- 

ried  w'oman,  resident  of  said  townsliip,  for  being  the  father  of  a  bastard  child,  [with 

which  the  said  A B is  now  pregnant;  or  say,  if  the  fact  so  be,  of  which 

the  said  A B has  been  delivered:]  and  the  said  C D hath  com- 
promised with  and  satisfied  the  said  A B ,  in  the  premises,  in  pursuance 

of  the  law: 

Now,  if  the  said  C D shall  save  the  said  township  free  from  all  charges 


2Well.]  ■:  BASTARDY.  267 

ditioned  to  save  such  township  from  all  charges  towards  the  main- 
tenance of  the  child;  then,  and  in  that  case,  the  justice  must  dis- 
charge the  party  accused  out  of  custody.* 

The  agreement  between  the  complainant  and  accused  must  be 
made  or  acknowledged  by  both  parties  in  the  presence  of  the  jus- 
tice, who  must  enter  a  memorandum  thereof  upon  his  docket.'' 

If  such  agreement  between  the  complainant  and  accused  is  not 
made,  or  being  made,  the  accused  does  not  give  bond  indemnifying 
the  township,  the  justice  must  bind  the  accused  in  a  recognizance 
with  sutlicient  security,  in  a  sum  not  less  than  two  hundred,  nor 
more  than  five  hundred  dollars,  to  appear  at  the  next  court  of  com- 
mon pleas,  to  answer  to  the  accusation  and  to  abide  the  order  of 
tlxe  court  thereon.  The  recognizance  is  taken  for  the  benefit  of  the 
township.(l)  If  the  accused  neglect  or  refuse  to  find  security,  the 
justice  must  cause  him  to  be  committed  to  the  jail  of  the  county ."^(2) 

(a)  Stat.  155,  $1.  (b)  Id.  156,  §2.  (c)  Id.  ib.  $3. 

for  the  maintenance  of  said  child,  then  this  obligation  to  be  void,  otherwise  to  be 

and  remain  in  full  force  in  law.  [Signed,]         C D ,  [Seal.] 

T S ,  [Seal.] 

J M ,  [Seal.] 

The  statute  seems  to  require  security  to-  the  bond;  Stat.  156,  §3. 

(1)  Form  of  the  Recognizance  for  the  appearance  of  the  defendant: 
The  State  of  Ohio,  county,  ss. 

Be  it  remembered,  that  on  this  —  day  of ,  in  the  year  of ,  C — -  D— — <, 

T S and  J M personally  appeared  before  me,  G H ,  a 

justice  of  the  peace  of township,  in  said  county,  and  jointly  and  severally  ac- 
knowledged themselves  to  owe  and  be  indebted  unto  the  State  of  Ohio,  for  the  use 

and  benefit  of township  in  said  county,  the  sum  of  [here  insert  not  less  than  two 

hundred,  nor  more  than  Jive  hundred  dollars,]  to  be  levied  of  their  goods  and  chat- 
tels, lands  and  tenements,  upon  this  condition, — that  if  the  said  C D shall 

personally  appear  before  the  court  of  common  pleas  next  to  be  holden  in  and  for 

said  county  of ,  on  the  first  day  of  the  term  thereof,  continue  from  day  to  day, 

and  then  and  there  answer  unto  a  complaint  of  bastardy  made  by  A B , 

against  him,  and  abide  the  order  of  the  court  thereon,  then  this  recognizance  to  be 
void,  otherwise  to  be  and  remain  in  full  force  in  law. 

[Signed,]  C D , 

T S , 

J M . 

Taken  and  acknowledged  before  me,  the  day  and  year  aforesaid. 

G H ,  J.  p. 

(2)  Form  of  Mittimus  for  the  commitment  of  the  accused  to  the  jail  of  the  county: 
The  State  of  Ohio, County,  ss. 

To  the  keeper  of  the  jail  of  the  county  aforesaid,  greeting. 

Whereas,  C D has  been  arrested  and  brought  before  me,  G II , 

a  justice  of  the  peace  in  and  for  said  county,  by  warrant  issued  by  me,  on  a  com- 
plaint of  bastai-dy,  made  against  him  by  A B ,  an  unmarried  woman,  and 

resident  of  said  county;  the  said  A B examined  in  presence  of  said  C 

D ,  and  such  proceedings  iiad,  that  said  C D was  ordered  i)y  me  to 

enter  into  recognizance  with  security,  in  the  sum  of dollars,  for  his  appearance 

at  the  next  term  of  tlie  court  of  common  pleas  otsaid  county,  to  answer  said  accu- 
sation, &c.,'wliicli  he  hath  neglected  to  do. 

Therefore,  I  command  you,  in  the  name  of  tlie  State  of  Ohio,  to  receive  said 

C 1) into  your  custody  in  tlie  jail  of  the  county  aforesaid,  there  to  remain 

until  discharged  by  due  course  of  law. 

Given  under  my  iiand  and  seal,  this day  of ,  A.  D.  18 — . 

G H ,  J.  p.  (Seal.) 

See  the  form  of  a  return  to  a  MlUlinu.s,  page  52.  ■, 


268  BASTAiiDT.  [^Prt.  2, 

If  a  woman  has  a  bastard  child  and  neglects  to  bring  a  suit  for 
its  maintenance,  or  commences  a  suit  and  fails  to  prosecute  the  same 
to  final  judgment,  the  overseers  of  the  poor,  in  any  township  inter- 
ested in  the  support  of  the  child,  (when  sufficient  security  is  not 
oflered  to  save  the  township  from  expense,)  may  bring  a  suit  in  be- 
half of  the  township,  against  the  person  who  is  accused  of  begetting 
such  child;  or  may  take  up  and  prosecute  a  suit  begun  by  the  mo- 
ther of  the  child.*  The  father  of  the  bastard  child  has  no  legal 
right  to  the  custody  or  control  of  it,  in  opposition  to  the  claim  of 
the  mother.'* 


FORM  OF  DOCKET  ENTRY. 


B- 


C- 


vs.  >     Bastardy. 

D .      S 


May  19,  1847. 

A B ,  an  unmarried  woman,  and  resident  of  the  county 

of ,  Ohio,  this  day  made  complaint  under  oath  to  me,  [that  she 

has  been  delivered  of  a  bastard  chihl;  o?-  .sv/?/,  if  the  fact  be  5o,  that 
she  is  pregnant  with  a  child,  which,  if  born  alive,  will  be  a  bastard;] 
and  that  C D is  the  father  of  said  child.  Her  said  accu- 
sation was  then  reduced  to  writing  by  me,  and  sworn  to  by  her,  and 
I  then  issued  a  warrant  for  said  C D ,  directed  and  deliv- 
ered to  I J ,  constable  of township,  in  said  county. 

May  20,  1 847. 

With  the  body  of  C D ,  the  said  constable  returned  the 

warrant,  '■'■3Iai/  20,  1847,  1  have  the  body  of  the  within  named 
C D . 

Fees,  — — ,  I J ,  Constable." 

The  said  A. B also  present,  who  was  duly  sworn  and 

examined  by  me,  in  the  presence  of  said  C D ,  and  the  ex- 
amination reduced  to  writing  by  me  and  filed.     Finding  the  said 

complaint  true,  *  the  said  C D thereupon  refusing  to  pay 

the  said  A —  B to  her  satisfaction,  it  is  ordered  and  adjudged, 

that  he  enter  into  recognizance  in  the  sum  of dollars,  for 

his  appearance  at  the  next  term  of  the  court  of  common  pleas  of 

county,  to  answer  said  complaint,  and  abide  the  order  of  the 

court  thereon.     The  said  C D ,  with   T S and 

J M ,  entered  into  recognizance  accordingly.     [Here  enter 

the  recognizance.     See  form.,  page  2G7.] 

(a)  Stat.  156.  $2.  (b)  2  Kent's  Com.  215. 

(1)  The  practice  has  been  to  carry  on  the  suit  in  the  name  of  "  The  State  of 
Ohio;"  but  this  seems  unnecessary,  the  female  being-  the  real  plaintiff,  and  there- 
fore the  proper  plaintiff  to  name  on  the  docket.  See  Wright's  Hep.  565.  The 
prosecuting  attorney  is  not  bound  to  attend  to  such  suits. 


Title  11.]  BASTARDr.  269 

If  the  facts  he  so  make  the  following  entry:     The  said  C —  D- 


neglected  [refused]  to  enter  into  said  recognizance,  witii  surety, 
whereupon  mittimus  issued  and  dehvered  lO  I J ,  consta- 
ble, for  his  commitment  to  the  jail  of  the  county. 

June  1,  1847. 

Mittimus  returned,  {liere  enter  the  ixturn^ 

If  the  woman  and  accused  compromise^  the  entry  may  he  as  follows^ 
heginning  at  the  *  in  the  preceding  form :    Thereupon  the  said  C — 

D and  said  A —  B ,  before  me,  acknowledged  that  they 

had  compromised  the  above  accusation,  as  follows:    C D 

has  executed  his  sealed  notes  to  A B ,  with  J D 

his  surety,  for  the  payment  of  the  following  sums  of  money :    

dollars  in  one  year, dollars  in  two  years,  dollars  in  three 

years  from  the  present  time;  and  the  said  A B then  and 

there  in  my  presence  acknowledged  that  she  received  said  notes  as 

a  full  satisfaction,  and  said  C D entered  into  bond  to  the 

overseers  of  the  poor  of township,  in  said  county,  and  their 

successors  in  office,  in  the  sum  of ,  with  T S and 

J M his  sureties,  conditioned  to  save  said  township  free 

of  all  charges  towards  the  maintenance  of  said  child,(l)  and  paid 

the  costs  of  this  prosecution,  taxed  at dollars.      Whereupon 

said  C D was  discharged  from  custody. 

(1)  See  the  form  of  the  bond,  pages  266,  267. 


TITLE  XII. 
CONSTABLES. 


SECTION  I.       HOW  INDUCTED  INTO  OFFICE,  WITH  THE    FORM    OF  THEIR  OFFI- 
CIAL BOND. 

II.  IN  WHAT  CASES  A  JUSTICE  MAY   APPOINT    A    CONSTABLE,    WITH 

THE  FORM  OF  THE  APPOINTMENT. 

III.  THE  GENERAL  POWERS  AND  DUTIES  OF  CONSTABLES. 

IV.  PROCEEDINGS  AGAINST    A    CONSTABLE    AND    HIS    SURETIES    FOR 

THE    MISCONDUCT    OF    THE    FORMER,    WITH   FORMS  OF    PRO- 
CESS AND  DOCKET  ENTRIES. 


Sec  I. HOW  INDUCTED  INTO  OFFICE,  WITH  THE  FORM  OF  HIS  OFFICIAL 

BOND. 

Constables  are  elected  annually  on  the  first  Monday  of  April,  at 
the  township  elections.* 

Every  constable,  within  ten  days  after  his  election,  must  take  an 
oath  or  affirmation  before  some  person  authorized  to  administer 
oaths,  to  support  the  constitution  of  the  United  States,  and  the  con- 
stitution of  the  state  of  Ohio,^  and  to  faithfully  and  impartially  dis- 
charge the  duties  of  his  office,*^  and  also  within  ten  days  after  the 
election  or  appointment,  and  before  he  enters  on  the  duties  of  his 
office,  he  must  give  bond  to  the  State  of  Ohio,  in  any  sum  not  ex- 
ceeding two  thousand  dollars,  nor  less  than  five  hundred  dollars, 
with  one  or  more  sureties,  resident  in  the  proper  townships,  such  as 
the  trustees  thereof  shall  approve,  conditioned  for  the  faithful  and 
diligent  discharge  of  the  duties  of  his  office.  The  township  clerk 
makes  an  entry  of  the  bond  in  the  township  record,  and  files  it  in 
his  office.'^(l) 

(a)  Stat.  950,  $7.  (c)  Stat.  950,  $8. 

(b)  Const.  Ohio,  Art.  7,  $1.  (d)  Id.  ib.  $9. 

(1)  Form  of  a  constable's  official  bond: 

Follow  the  form  of  the  bond  given  at  page  A,  note  (3),  to  the  words  "Whereas  the 
said  G.  H.,"  and  from  that  point  proceed  as  follows: 

"Whereas  the  said  I J hath  been  duly  elected  and  qualified  as  a  consta- 
ble in  and  for  the  township  of and  county  of ,    in  said  State,  for  the 

term  of  one  year  from  the  —  day  of  April,  eighteen  hundred  and . 

Now  tlie  condition  of  the  above  obligation  is  such,  tiiat  if  said  I J shall 

diligently  and  faithfully  discharge  the  duties  of  his  said  office  of  constable,  then 
this  obligation  to  be  void,  otherwise  to  be  and  remain  in  full  force  and  virtue. 

ISigncd,]  I J ,     [Seal.-] 

E F ,    [Seal] 


[Prt.  2,  Title  \%  §1,  2,  3.]      constables.  271 

Sec.  II. IN  WHAT  CASES  A  JUSTICE  MAY  APPOINT  A  CONSTABLE.* 


Where  there  is  no  constable  in  a  township,  or  if  the  constable 
is  absent,  or  a  party  to  the  suit,  or  is  under  any  other  disability, 
the  justice  may,  if  it  is  necessary  that  process  should  be  immedi- 
ately served  either  in  a  criminal  or  civil  case,  appoint  a  person  who 
is  willing  to  serve  for  the  time  being.  The  appointment  must  be 
in  writing  under  the  hand  and  seal  of  the  justice,  and  must  specify 
the  cause  of  such  appointment.(l)  No  security  in  such  case  is 
required,  but  the  person  appointed  is  liable  for  neglect  of  duty, 
or  illegal  proceedings,  and  is  entitled  to  the  same  fees  as  other 
constables,  and  may  act  until  the  vacancy  is  again  supplied.* 
There  is  nothing  in  the  statute  which  forbids  the  constable  thus 
appointed,  from  serving  process  issued  by  any  justice  of  the  town- 
ship. 


Sec.  III. THE  GENERAL  POWERS  AND  DUTIES  OF  CONSTABLES. 

Constables  are  the  ministerial  officers  of  the  courts  held  by  jus- 
tices. It  is  their  duty  to  apprehend  and  bring  to  justice,  felons,  and 
disturbers  of  the  peace,  within  their  respective  counties.^ 

The  mode  in  which  process  is  served  and  returned  by  them,  is 
pointed  out  in  another  part  of  this  work. 

It  is  their  duty  to  notify  township  officers  of  their  election.'^ 

Constables  upon  receiving  a  w^arrant  from  the  trustees,  or  the 
clerk  of  the  township,  must  notify  the  electors  of  a  township,  of  the 
time  and  place  appointed  for  the  annual  township  meeting,  by  set- 
ting up  copies  of  the  warrant  in  three  public  places  in  the  town- 
ship, at  least  ten  days  before  the  meeting  of  the  electors.*^ 

It  is  their  duty  to  preserve  the  peace  at  the  township  elections 
and  meetings,  and  if  the  trustees  order  it,  they  must  remove  or  con- 
fine, until  the  close  of  the  election  or  meeting,  disorderly  persons, 
and  otherwise  obey  the  directions  of  the  trustees  in  relation  to  pre- 

(a)  Stat.  524,  $100,  (c)  Stat.  951,  $10. 

(bj  Id.  541,  $25;  506,  $2.  (d)  Id.  952,  $16  and  17. 


(1)  Form  of  the  appointment  of  a  constable  by  a  justice: 

Tlie  State  of  Ohio,  Township,  County,  ss. 

To  A B . 

There  bcinf^  no  constable  in  said  township,  [or  say,  if  the  fact  be  so,  I —  J , 

the  only  constable  of  said  township,  being-  sick,  and  unable  to  attend  to  the  duties 
of  his  office,  or  being-  a  party  to  the  suit  of  A B ,  now  about  to  be  com- 
menced before  me,  or  bein^  absent  from  said  township,  us  the  case  viuy  tte,'\  and  it 

being-  necessary  that  process  should  be  immediately  served,   in  the  case  of  A 

B vs.  C D ,    you  are  therefore  hereby  appointed  constable  of  said 

township,  and  authorized  to  perform  the  duties  of  said  office  for  the  time  being-. 

Given  under  my  hand  and  seal,  this day  of ,  A.  D.  18 — . 

G II ,  [Seal.] 

Justice  of  the  peace,  in  and  for  said  county. 


272  CONSTABLES.  [Prt.  2^  Title  12^ 

serving  order  and  regularity.*  The  trustees  allow  the  constable 
reasonable  compensation  for  advertising  the  time  of  holding  town- 
ship elections,  and  for  notifying  township  officers  of  their  election.^ 
It  is  a  general  rule,  in  relation  to  the  allowance  of  fees  to  an 
officer,  that  when  the  law  requires  him  to  do  an  act  without  direct- 
ing a  compensation  therefor,  the  officer  is  bound  to  do  the  act  with- 
out charge  or  fee.  The  constable  therefore,  is  not  entitled  to  fees 
for  preserving  order  at  the  township  elections. 


Sec.  IV. PROCEEDINGS  AGAINST  A  CONSTABLE  AND    HIS    SURETIES  FOR 

THE  MISCONDUCT  OF  THE  FORMER,  WITH  FORMS  OF  PROCESS 
AND  DOCKET  ENTRIES. 


The  jurisdiction  of  justices  of  the  peace  does  not  extend  to  ac- 
tions against  constables,  for  misconduct  in  office,'  except  when  they 
fail  to  make  return,  or  make  a  false  return  to  process,  or  refuse  to 
pay  over  mone}^  collected  or  received  in  an  official  capacity.**  For 
other  official  misconduct,  the  remedy  of  the  party  injured,  is  by  suit 
in  the  court  of  common  pleas. 

It  is  the  duty  of  an  officer,  when  he  receives  process  which  is 
valid,  to  indorse  upon  it  the  facts  in  relation  to  the  mode  and  man- 
ner in  which  he  has  executed  its  command;  or  if  he  has  not  execu- 
ted the  writ,  he  must  endorse  upon  it  a  legal  excuse  for  not  per- 
forming his  duty.  He  must  also  deposit  with  the  justice  the  writ 
thus  indorsed,  within  the  time  prescribed  by  law.  If  a  constable 
fails  in  any  one  of  these  three  duties,  he  fails  to  make  return  of  pro- 
cess, and  renders  himself  and  his  sureties  liable  to  be  sued  by  scire 
facias,  in  the  manner  hereafter  mentioned. 

If  the  plaintiff  has  not  in  fact  sustained  any  damages,  by  reason 
of  the  omission  of  the  officer  to  indorse  upon  the  writ  his  doings 
under  it,  or  on  account  of  his  neglect  to  deposit  the  writ  duly  in- 
dorsed, with  the  justice,  within  the  time  prescribed  by  law,  the  con- 
stable will  only  be  liable  for  nominal  damages(l)  and  costs.® 

If  the  officer  makes  retui'n  that  he  has  done  the  act  required  of 
him  by  the  command  of  the  writ,  or  states  a  fact  in  the  return, 
which  if  true,  would  by  law  excuse  his  compliance  with  the  com- 
mand of  the  Avrit,  in  every  such  case,  if  the  return  is  false,  the 
officer  and  his  sureties  will  be  liable  to  the  plaintiff,  in  a  suit  by 
scire  facias,  as  hereafter  mentioned.    In  an  action  for  a  false  return, 

(a)  Stat.  954,  $24;  (d)  Stat.  531,  $1 16. 

(b)  Id.  953,  $22.  (c)  1  Wend.  Kep.  48. 

(c)  Id.  525,  $106. 

(1)  Nominal  damag-es  are  given  where  the  plaintiff  has  a  good  right  of  action, 
and  is  therefore  entitled  to  judgment  for  some  amount,  but  has  in  fact  sustained 
no  damages.  In  such  cases  the  plaintiff  is  entitled  to  a  judgment  for  one  cent, 
which  is  called  nominal  damages. 


§4.]  CONSTABLES.  273 

though  the  return  be  untrue  on  its  face,  yet  the  officer  making  it,  is 
not  hable  except  for  nominal  damages  and  costs,  if  the  facts  of  the 
case,  truly  stated,  would  have  produced  the  same  result  to  the  party- 
complaining,  as  the  return  made.* 

In  general,  the  plaintiff  will  recover  in  an  action  against  a  con- 
stable for  failing  to  make  return,  or  making  a  folse  return,  or  refus- 
ing to  pay  over  money  collected  or  received  ofRcially,  the  amount 
of  damages  sustained  by  him,  with  ten  per  cent  penalty,  and  costs.^ 

If  a  constable  receives  or  collects  money  merely  as  an  agent,  and 
not  in  his  official  capacity,  he  can  neither  be  sued  by  scire  facias, 
nor  are  his  sureties  liable.  The  constable  in  such  case  may  be  sued 
like  other  agents. 

The  statute  provides''  that  when  a  constable  shall  fail  to  make  re- 
turn, or  shall  make  a  false  return,  or  refuse  to  pay  over  money  by 
him  collected  or  received  in  his  official  capacity,  any  justice  of  the 
peace  within  the  township  where  such  delinquent  constable  may 
reside,  or  be,  being  satisfied  thereof,  on  application  of  any  person 
or  persons  aggrieved  thereby,  his  or  their  agent  or  attorney,  shall 
forthwith  issue  a  scire  facias  against  such  constable,  directed  to  any 
responsible  individual  who  may  be  named  by  the  justice,  and  who 
will  consent  to  serve  the  same,  commanding  the  delinquent  consta- 
ble to  appear  before  the  justice  to  show  cause  why  an  execution 
.should  not  be  issued  against  him. 


FORM  OF  SCIRE  FACIAS  AGAINST  A  CONSTABLE. 


The  State  of  Ohio, Township, County,  ss. 

To  R S ,  greeting: 

Whereas,  I J ,  constable  of township,  in  said 

county,  [here  state  the  particular  cause  of  complaint.  If  the  suit  is 
brought  for  failing  to  make  return  of  an  execution.,  the  cause  of  com- 
plaint may  he  slated  as  follows  •]  ^'•did  fail  to  make  return  and  within 
the  time  prescribed  by  law,  of  a  certain  execution  issued  on  the 

day  of ,  in  the  year by  M J , 

then  and  ever  since  being  a  justice  of  the  peace  in  and  for  said 

township  and  county,  in  favor  of  A B against  C 

D ,  for  the  sum  of dollars, cents,  which  then 

duly  came  to  the  hands  of  said  I J as  said  constable,  to 

execute." 

If  the  suit  is  brought  for  making  a  false  return  of '•'■no  goods.,  ^-c." 
to  an  execution.,  state  the  cause  of  complaint  as  follows:  "to  a  certain 

Fi,  FA.  execution,  in  due  form  of  law  issued,  on  the day  of 

,  in  the  year ,  by  M J ,  then  a  justice  of 

the  peace  of  said  township  and  county,  in  favor  of  A B , 

against  C D ,  for  the  sum  of dollars cents, 

and  which  then  duly  came  to  the  hands  of  said  I J to 

(a)   1  Wcn.l.  Rep.  4R.  (h)  Stat.  531,  ^1 16. 

35 


274  CONSTABLES.  [Prt.  %  Title  1 2, 

execute,  as  and  being  said  constable,  he  the  said  I J ,  as 

said  constable,  did  falsely  make  return  upon  said  writ,  that  the  said 

C D had  not  any  goods  or  chattels  whereof  he  could  make 

any  part  of  the  amount  of  said  execution;  whereas,  in  truth  and  in 

iact.  the  said  C J) ,  at  the  time  said  execution  was  in  the 

hands  of  said  I J to  be  executed,  iiad  goods  and  chattels 

liable  to,  and  which  by  law  ought  and  might  have  been  taken,  by 
reasonable  diligence,  to  satisfy  said  execution,  or  a  part  thereof," 

If  the  cause  of  complaint  is  for  not  payhig  over  to  the  plaiyitijf  be- 
fore the  return  day  of  an  execution  money  collected  the?'eon^  it  may  he 
stated  as  folloics :{\)*  ''on  the day  of ,  in  the  year ,  col- 
lected as*  and  then  being  constable  of  said  township  and  county, 
the  sum  of dollars, cents,  upon  and  by  virtue  of  an  exe- 
cution, then  in  his  hands,  duly  issued  by  M J ,  a  justice  of 

the  peace  of  the  same  township  and  county,  for  the  sum  of 

dollars,  besides  costs,  in  favor  of  A B against  C D ;* 

and,  whereas,  the  said  A B being  entitled  to  said  money, 

on  the day  of ,  in  the  year ,  before  the  return  day  of 

said  writ,  demanded  said  sum  of  money  of  said  I J ,  who 

refused  to  pay  over  the  same." 

//"  the  complaint  is  for  not  paying  over  to  the  justice  on  the  return 
day  of  the  execution.,  the  monexj  collected  thereon.,  the  cause  of  complaint 
may  be  stated  as  follows:  Copy  themalter  between  the  two  asterisks  in 
the  last  preceding  paragraph.,  and  then  add  the  following:  —  "And, 

whereas,  the  said  I J neglected,  at  the  return  day  of  said 

execution,  and  still  doth  neglect  and  refuse,  to  pay  over  said  sum 

of  money  to  said  A B ,  or  M J ,  or  to  either  of 

them." 

After  stating  the  cause  of  coinplaint  accmxling  to  the  facts  in  eacti 
case.,  tlien  proceed  to  Jill  up  the  writ  with  the  following :  ''You  are 
therefore  hei'eby  commanded  to  summon  the  said  J J to  ap- 
pear before  me,  G II ,  a  justice  of  the  peace,  in  and  for  said 

township  of — ,  at  iny  office,  within  five  days  from  the  service  here- 
of, to  show  cause,  if  any  he  has,  why  an  execution  should  not  issue 
against  him,  in  favor  of  said  A —  B — ,  by  reason  of  the  premises; 
and  of  this  writ  make  legal  service  and  due  return. 

Given  under  my  hand  and  seal,  this  —  day  of  — ,  A.  D.  1 8 — . 

G H ,  J.  p.  (Seal.) 

If  the  constable  neglects  to  appear  within  five  days  from  the  time 
of  the  service  of  the  writ,  or  does  not  show  proper  cause  why  exe- 
cution should  not  issue  against  him,  the  justice  must  render  judg- 
ment for  the  amount  of  the  damages  sustained,  together  with  the 
costs,  and  ten  per  cent  penalty,  and  forthwith  (without  permitting 
a  stay  of  execution  to  be  taken)  issue  execution  therefor.* 

.(a)  Stat.  531,  $116. 

(1)  As  to  wlien  money  sliould  be  paid  by  a  constable  to  the  plaintiff,  or  to  the 
justice  who  issued  the  writ,  see  paj^e  164. 


§4.]  CONST  ABLBS.  275 

I.H3KM  OF  A  IXDCKF.T  KNTRY,  IN    PROCEEDINGS  AGAINST  A  CONSTABLE. 


A B- 

vs. 


I — J — . 

Suit  brought  against  the  defendant  as  constable  of town- 
ship,   county,  for  [//ere  state  the  cause  of  complaint^  in  the 

same  manner  as  is  directed  in  the  2^1'cceding  scire  facias.']      Amount 
claimed,  ^ — ,  with  ten  per  cent  penalty. 

Mai/  20,  1847. 

Bill  of  particula,rs  filed,  and  being  satisfied  that  the  said  defend- 
ant, as  is  above  complained  against  him,  made  a  false  return,  [or 
say.,  failed  to  make  return,  ifg  say.,  refused  to  pay  over  said  money 
received  by  him  in  his  official  capacity,  as  the  case  may  6e,]  contrary 

to  law;  upon  application  of  said  A B ,  I  issued  a  scire 

facias  against  the  defendant,  directed  and  delivered  the  same  to 

R S ,  a  responsible  person,  who  consented  to  serve  the 

same. 

May  21,  1847. 

Scire  facfhs  returned,  "Personally  served  on  the  20///  day  of  TV/ay 
1847,  by  deliveriii^  a  copy  to  the  defendant,  which  was  demanded. 
Fees  —  cents.      *^  R S ." 

May  26,  1847. 

The  plaintiff  appeared,  the  defendant  failing  to  appear  within  five 
days  from  the  time  of  the  service  of  said  writ,  [or  say  if  the  fact  be 
so.,  "the  defendant  appeared,"  and  then  proceed  as  folloios:']  trial 
had,  and  no  proper  cause  being  shown  why  execution  should  not 
issue  against  said  constable;  it  is  therefore  considered  by  me  that 
the  plaintiff"  recover  of  said  defendant  the  sum  of —  dollars,  and  — 
cents,  being  the  damages  sustained  by  the  plaintiff"  in  the  premises, 
and  also  the  sum  of —  dollars,  —  cents,  being  ten  per  cent  penalty 
on  said  damages,  (which  in  the  whole  amount  to  —  dollars,  —  cts.) 
together  with  costs  herein  taxed,  at  —  dollars,  —  cents,  and  that 
execution  issue  accordingly. 


The  execution  may  be  directed  to  any  person  the  justice  may 
think  proper,  who  serves  and  returns  it,  and  charges  fees  the  same 
as  if  he  were  a  constable.*  If  the  execution  is  returned  unsatisfied, 
either  for  want  of  goods  and  chattels  whereon  to  levy,  or  other 
cause,  the  justice,  upon  the  request  of  the  plaintiff',  may  issue  scire 
facias  against  the  sureties  of  the  constable,  and  make  them  parties 
to  the  judgment,  if  they  reside  in  any  township  of  his  county .*• 

(a)    Slat.  531,  $110.  (h)    Id.  532,  $117,  1 19,  120. 


276  CONSTABLES.  [Prf.  ±  Title  \2, 


FORM  OF  SCIRE  FACIAS  AGAINST  THE    SURETIES  OF  A  CONSTABLE. 

The  State  of  Ohio,  county,  township,  ss. 

To  any  constable  of  said  township,  greeting: 

Whereas,  A B recovered  judgment  against  I J for 

official  misconduct  as  constable  of  said  township,  for  the  sum  of 

—  dollars,  —  cents,  and  —  dollars  costs,  on  the  —  day  of , 

A.  D.  18 — ,   before   me,  G II ,  a  justice  of  the  peace  in  and 

for  said  township  and  county,  as  appears 'of  record,  and  which  re- 
mains due  upon  execution  issued  thereon,  and  returned  unsatisfied, 
and  whereas,  [//ere  insert  the  names  of  the  suretiesl^  are  the  sureties 

of  said  I J on  his  official  bond,  and  liable  in  the  premises  as 

alletlged,  for  the  amount  of  said  judgment:  this  is  therefore  to  com- 
mand you  to  summon  the  said  \Jiere  insert  the  names  of  the  sureties^ 

to  be  and  a]:>pear  before  me,  at  my  offic^  in  the  township  of , 

in  said  county,  at  —  o'clock, ,  on  uie  \jiere  insert  a  day  for  the 

trials  not  more  than  tivelve  days  from  the  time  of  issuing  the  ivrit^  and 
such  time  that  the  xcrit  may  he  served  Jive  days  previous  to  tJie  day  of 

trial.     Stat.  534,  §126.]  day  of ,  in  the  year  — ,  to  show  cause, 

if  any  there  be  why  judgment  should  not  be  rendered  against  them, 
for  the  damages,  interest,  and  costs  aforesaid,  remaining  due  and  un- 
paid, and  why  execution  should  not  issue  therefor;  ancl  of  this  writ 
make  legal  service  and  due  return.     Given  under  my  haifS  and  seal, 

this  —  day  of ,  A.D,  1 8—. 

G II—*,  J.  P.     {Seal) 

If  the  sureties  reside  in  the  county,  but  do  not  reside  in  the  town- 
ship of  the  justice,  he  may  direct  the  scire  facias  to  any  constable 
of  his  own  tow-nship,  or  to  any  constable  of  the  township  where  the 
sureties  reside.*  In  either  event,  the  constable  who  receives  the 
writ  may  be  proceeded  against  by  the  justice  who  issues  it,  for  not 
making  .return,  or  for  making  a  false  return,  as  in  other  cases.** 

The  sureties  may  at  the  return  day  of  the  scire  facias,  set  up  any 
matter  which  may  have  arisen  subsequent  to  the  entering  of  judg- 
ment against  the  constable.*^  If  they  do  not  show  sufficient  matter 
of  defence,  or  that  they  have  paid  on  judgments  the  full  amount  of 
the  official  bond,**  judgment  must  be  entered  against  them  for  the 
amount  rendered  against  the  constable,  or  so  much  thereof  as  re- 
mains due.®  Execution  is  aw^arded  against  them  as  in  other  cases.^ 
The  goods  and  chattels  however  of  the  surety  are  not  liable  to  be 
taken  in  execution  w^hen  sufficient  goods  and  chattels  of  the  consta- 
ble can  be  found  to  satisfy  the  same.(l) 

(a)  Stat.  532,  $119;  522,  $92.  (d)  Id.  ib.  $127. 

(1.)  Id.  ih.  (e)  Id.  ih.  $125. 

(c)  Id.  534,  $125.  (g)  Id.  ib. 

(1)  Stat.  534,  §12.5.  It  would  seem  from  the  terms  of  the  statute,  that  upon 
the  judg'ment  against  the  security,  it  is  proper  to  issue  an  execution  in  the  form 
\vhich  will  be  found  on  page  142,  .sec.  6. 


§4.]  CONSTABLES.  277 


FORM  OF    DOCKET    ENTRY    IN    PROCEEDING   AGAINST    THE   SURETIES    OP   A 

CONSTABLE. 

These  proceedings  should  he  inserted  on  the  docket^  immediately 
after  the  proceedings  against  the  constable. 

After  the  statement  of  the  issuing  of  the  executio?i  against  the  con- 
stable., and  the  return  of  no  goods  and  chattels.,  proceed  as  follows: 

June  5,  1847. 

At  the  request  of  the  phiintiff,  issued  scire  facias  against  [here  in- 
sert the  names  of  the  sureties.']  the  sureties  of  said  constable,  on  his 
official  bond,  for  their  appearance,  June  15,  1847,  at  2  o'clock,  P. 
M.  and  delivered  to  R M ,  constable, 

June  7,  1  847. 

Scire  facias  returned,  "personally  served,"  June  6,  1847,  by  read- 
ing this  writ  to  each  of  the  defendants  within  named. 

Fees, .  R M ,  constable. 

June  15,  1847,  2  o'clock,  P.  M. 

Parties  appeared,  trial  had,  and  no  sufficient  matter  of  defence 
being  made,  it  is  considered  by  me  that  said  plaintiff  recover  of 
said  [liere  insert  the  names  of  the  su?-eties']  the  sum  of  [Ae?'e  insert  the 
amount  of  the  judgment  against  the  constable.,  with  the  interest  and 
costs.,  or  so  ?nuch  as  remains  due,]  (being  the  amount  remaining  due 
of  the  above  judgment,  against  the  said  constable.)  together  with 
the  costs  of  the  plaintiff  herein,  taxed  at dollars cents. 


TITLE  XIII. 


CONTEMPTS. 


A  CONTEMPT,  in  its  legal  acceptation,  consists  in,  either  ti'cating 
a  court  of  justice,  or  a  person  invested  with,  and  while  acting  under 
judicial  authority,  in  a  contumelious  and  disrespectful  manner,  or 
the  violating  of  rules  or  orders,  made  by  competent  tribunals. 

If  a  justice  while  holding  court  were  not  vested  with  the  power 
of  punishing  persons  for  misbehaviour  in  his  presence,  he  could  not 
even  preserve  order  or  silence.  Without  this  power  no  tribunal 
could  exist.  Single  magistrates  in  other  States  and  countries  pun- 
ish by  fine  or  imprisonment,  or  both,  any  person  who  is  guilty  of 
such  disorderly,  contemptuous  or  insolent  behaviour  towards  them, 
while  engaged  in  the  trial  of  a  cause,  or  in  the  rendering  of  a  judg- 
ment, orin  any  judicial  proceeding,  as  may  tend  to  interrupt  such 
proceedings,  or  to  impair  the  respect  due  to  their  authority.*  I 
have  no  doubt  but  that  this  salutary  and  necessary  power,  may  be 
exercised  by  a  justice  of  the  peace  in  Ohio.(l) 

When,  therefore,  any  person,  be  he  party,  attorney,  witness, 
constable,  or  bystander,  is  guilty  of  disorderly  and  insolent  beha- 
viour while  the  magistrate  is  engaged  in  his  judicial  duties,  as  above 
mentioned,  the  justice  may  order  the  person  into. custody,  and  im- 
mediately punish  for  the  contempt,  by  fine  or  imprisonment,  or  both, 
at  his  discretion. 

When  a  justice  is  insulted,  or  a  person  disturbs  his  court,  he 
should  remember  that  the  law  does  not  give  him  the  power  of  pun- 
ishing for  the  sake  of  soothing  his  own  feelings,  or  to  compensate 
him  lor  an  insult.  It  is  his  official  character  alone  that  the  law  in- 
tends to  protect,  and  consequently  a  magistrate  is  not  protected 
from  insult  except  while  he  is  holding  his  court. 

The  power  of  punishing  for  a  contempt  should  be  exercised  with 
great  caution,  and  in  no  case  when  the  justice  himself  has  been 
guilty  of  rude  or  passionate  behaviour  or  language  towards  the 
person  guilty  of  the  contempt. 

(a)  1  Bay,  1;  and  see  1  Dall.  329;  1  Pet.  C.  C.  Rep.  73;  1  iPet.  Cond.  Rep.  407,  note;  20  Vol. 
Niles  Reg.  73;  Cowan's  Jus.  549;  Slat.  211. 


(1)  The  statute  of  thi.s  State  in  relation  to  contempts,  (Sfaf.  211,)  is  not  per- 
haps applicable  to  justices'  courts.  The  slaUitc  punishinf,'-  persons  for  abusing  a 
judge  or  justice,  while  in  the  execution  of  his  office,  (Siaf.  242,  ^56,)  cannot  by 


construction,  reach  disturbances  in  court. 


[Prt.^^Title\3.]  contempts.  279 

When  a  contempt  has  been  committed,  the  first  step  should  be, 
after  ordering  the  person  into  custody,  to  draw  up  a  statement  of 
the  charge  in  the  docket,  setting  forth  the  time,  place,  and  circum- 
stances under  which  the  ofience  was  committed.  This  should  inva- 
riably be  done  for  the  protection  of  the  magistrate;  for  it  will  be 
conclusive  evidence  in  his  favor,  of  the  facts  stated,  should  an  action 
be  brought  ao;ainst  him.'^ 


form  of  the  entry  on  the  pocket,  when  a  person  has  been  guilty 

of  a  contempt. 

The  State  of  Ohio,  ) 
vs.  > 

S R .       ) 

The  State  of  Ohio, Township, County,  ss. 

Be  it  remembered,  that  during  the  trial  of  a  cause  between  A 

B ,  plaintiff,  and  C —  D ,  defendant,  before  me,  G —  H ,  a 

justice  of  the  peace  of  said  township  and  county,  on  the  —  day  of 

—  in  the  year ,  at  my  office  in  the  said  township,  S —  R did 

wilfully  and  contemptuously  misbehave  and  interrupt  me  while  en- 
gaged in  the  trial  of  the  said  cause,  by  making  a  great  noise  and  dis- 
turbance; and  being  ordered  by  me  to  cease  making  such  noise  and 
disturbance,  refused  so  to  do,  and  said  to  me  that  he  did  not  regard 
me  nor  my  authority;  [or  of  her  description  of  the  offence  according 
to  the  fact.']  and  thereupon  I  immediately  ordered  him  into  custody, 
and  reduced  the  matters  and  charge  of  misbehavior  and  contempt 
aforesaid  to  writing,  in  the  words  and  figures  aforesaid,  (which  are 
the  said  w^ords  and  figures,)  and  read  the  same  to  the  said  S —  R — , 
W'ho  being  then  called  upon  to  answer  for  the  said  contempt,  and 
not  having  purged  himself  therefrom,  I  do  find  and  convict  said  S — 
R — ,  of  a  contempt  in  the  premises,  and  do  adjudge  that  he  therefor 
pay  a  fine  of  —  dollars;  and  also  that  he  be  imprisoned  in  the  jail  of 
the  said  county,  —  hours,  and  until  he  pay  the  fine  aforesaid,  or  be 
duly  discharged,  according  to  law. 


FORM  OF  COMMITMENT  FOR  A  CONTEMPT. 

The  State  of  Ohio, county,  ss. 

To  the  keeper  of  the  jail  of  said  county,  greeting: 
Whereas,  S —  R —  has  this  day  been  convicted  before  me,  G — 
H — ,  a  justice  of  the  peace  of  the  township  of  — ,  in  said  county, 
of  a  contempt;  for  that,  on  this  day,  during  the  trial  of  a  cause  be- 
tween A —  B — ,  plaintifl[',  and  C —  D — ,  defendant,  before  me,  at  my 
office  in  said  township,  he,  the  said  S —  R — ,  did  wilfully  and  con- 
temptuously misbehave  and  interrupt  me,  while  engaged  in  the  trial 

(n)  16  East,  13. 


280  coNTEikiPTs.  \_Prt.'2^  Tith\3.] 

of  said  "cause,  by  making  a  great  noise  and  disturbance;  and  being 
ordered  by  me  to  cease  making  such  noise  and  disturbance,  refused 
so  to  do,  and  said  to  me,  that  he  did  not  regard  me,  nor  my  authori- 
ty; [or  other  dcscripiion  of  the  olfence.  accurding  to  the  facts.]  And 
whereas,  upon  such  conviction,  1  did  adjudge  and  determine,  that 
the  said  S —  R —  pay  a  fine  of —  dollars;  and  also  tliat  lie  be  im- 
prisoned in  the  jail  of  said  county  —  hours,  and  until  he  pay  the  said 
fine,  or  be  duly  discharged  according  to  law: 

You  are  therefore  hereby  commanded,  to-receive  the  said  S —  R — , 
and  him  confiuv',  in  the  jail  of  said  county,  —  hours,  and  until  he 
pay  said  fine,  or  be  duly  (liscliarged  according  to  law. 

Given  under  my  hand  and  seal,  this  —  day  of — ,  in  the  year  — . 

G II ,  J.  V.  {Seal) 


TITLE  XIV. 


CONTRACTS  GENERALLY. 


SECTION  I.  DEFINITION CONTRACTS  BY  PAROL SPECIALTIES EXECU- 
TED  EXECUTORY EXPRESS IMPLIED, 

II.  OF  WANT  OF  UNDERSTANDING  TO  MAKE  A  CONTRACT. 

III.  OF  RESTRAINT  BY  IMPRISONMENT. 

IV.  OF  RESTRAINT  BY  THREATS. 

V.  OF  THE  CONSIDERATION  OF  A  CONTRACT; 

VI.  OF  AN  ILLEGAL   CONSIDERATION. 

VII.  HOW  CONTRACTS   SHOULD  BE  CONSTRUED  AND  PERFORMED, 

VIII.  OF  THE  ALTERATION  OF  CONTRACTS. 

IX.  OF  CONTRACTS  NOT  TO  BE  PERFORMED  WITHIN  ONE  YEAR. 


Sec    I. DEFINITION CONTRACTS    BY   PAROL SPECIALTIES EXECU- 
TED  EXECUTORY EXPRESS IMPLIED. 

The  word  ''contract,''  in  its  legal  sense,  includes  every  descrip- 
tion of  agreement  or  obligation,  whether  verbal  or  written,  or  with 
or  without  seal,  whereby  one  party  becomes  bound  to  another  to 
pay  a  sum  of  money,  or  to  perform,  or  omit  to  do,  a  certain  act. 

If  a  contract  is  under  seal,  it  is  called  a  specialty,  or  a  deed:  if 
not  under  seal,  an  agreement  by  parol.  All  agreements,  whether 
written  or  verbal,  if  not  under  seal,  are  called  'parol'  agreements.(l) 

If  a  person  sells  and  delivers  goods  for  a  price  paid,  the  agree- 
ment is  executed;  as  nothing  more  is  to  be  done  by  either  party. 
If  you  purchase  a  horse,  which  is  to  be  delivered  and  paid  for  next 
week,  the  agreement  is  executory;  because  there  is  something  to  be 
done  in  order  to  perform  the  contract.  If  you  purchase  a  yoke  of 
oxen  of  A,  for  seventy  dollars,  and  pay  him  part  of  the  money  in 
hand,  the  contract  is  partly  executed^  and  partly  executory. 

When  the  terms  of  a  contract  are  openly  uttered,  or  put  in  wri- 


(1)  The  word  "parol,"  when  used  in  relation  to  evidence,  has  a  more  limited 
meaning  than  when  applied  to  contracts;  for  "parol  evidence,"  is  only  such  evi- 
dence as  arises  from  the  verbal  testimony  of  witnesses;  wiureas,  the  term  "parol 
contract"  includes  as  well  verbal,  as  also  all  written  agreements,  not  under  seal. 

36 


282  CONTRACTS  GENERALLY.  [Prt.  2,  Title  14, 

ting  and  signed  by  the  parties,  the  agreement  is  called  an  express 
contract:  as  to  deliver  a  load  of  wood  for  one  dollar,  or  to  pay  a 
stated  price  for  certain  goods,  or  the  like.  An  implied  contract 
is  where  justice  and  honesty  re(|uire  payment  for  some  value  or 
service  rendered,  altli(-)ugh  nothing  but  the  value  and  service  be 
proved:  ns  if  a  mnn  works  for  you,  the  law  implies  a  promise  to 
pay  iiiin  what  he  deserves  ibr  his  labor. 

If  you  receive  goods  of  a  merchant,  without  any  ngreement  as 
to  the  price,  the  law  concludes  that  you  contracted  to  pay  their  real 
value.  So  if  you  receive  property  for  me,  and  dispose  of  it,  the 
law  will  imply  a  promise  on  your  part  to  pay  mc  tiic  proceeds  of 
the  sale."^ 

In  general,  the  only  difference  between  an  express  and  implied 
contract,  is  as  to  the  mode  of  proof  An  express  contract  is  proved 
by  evidence  of  the  express  words  used  by  the  parties;  an  implied 
contract  is  established  by  proof  of  circumstances,  showing  either 
that  in  justice  and  honesty  a  contract  out  to  be  implied,  or  that 
the  parties  intended  to  contract.  Whether  the  contract  be  estab- 
lished by  evidence  direct,  or  circumstantial,  the  legal  consequences 
resulting  from  the  breach  of  it,  must  be  the  same. 

Thus:  where  money  or  property  is  paid,  under  a  mistake  as  to 
facts,  there  being  no  negligence  on  the  part  of  the  person  who 
pays,  (in  not  availing  himself  of  the  means  within  his  power,  of 
knowing  those  facts,)  it  may  be  recovered  back.''  The  law  raises 
an  implied  promise  to  refund  the  money,  or  the  value  of  the  pro- 
perty. But  this  implied  promise  will  only  arise  when  the  money 
or  property  ought,  in  equity  and  good  conscience  to  be  returned, 
and  when  the  contract  and  payment  is  founded  on  the  belief  that 
a  fact  did  not  then  exist,  which  really  did  exist;  or  when  the  con- 
tract is  founded  upon  the  belief  that  a  fact  then  existed,  which 
really  did  not  exist.  If,  therefore,  a  party  pay  money  which  the 
law  would  not  have  compelled  him  to  pay,  but  which  in  justice  he 
ought  to'  pay,  he  has  no  remedy  for  the  recovery  thereof^  So, 
where  parties  are  uncertain  about  a  fact,  and  make  the  contract, 
or  pay  money,  with  a  view  to  that  uncertainty,  (as  where  parties 
have  a  final  settlement  by  making  a  definite,  but  rough  estimate 
of  the  balance  between  them,)  tlie  contract  is  binding,  and  a  pay- 
ment under  it  cannot  be  recovered  back,  even  though  it  be  shown 
that  there  was  no  uncertainty  in  the  fact  wdiich  was  supposed  to 
be  uncertain.*^  In  such  case  there  is  no  unfairness:  both  parties 
acting  under  the  belief  that  it  is  better  so  to  contract,  than  to 
ascertain  with  certainty,  by  time  or  otherwise,  Mhether  the  fact 
certainly  exists,  or  not.  So,  if  a  party,  with  a  full  knowledge  of  the 
facts^  vohinlarily  pays  a  demand  unjustly  made  on  him,  and  at- 
tempted or  threatened  to  be  enforced  by  a  suit,  he  cannot  consider 
the  money  as  paid  by  compulsion^  and  recover  the  same  back  again, 
although  he  protested  at  the  time  against  his  responsibility.®     In 

(a)  Wright's  Rep.  485.  (d)  1  Wend.  Rep.  355. 

(b)  9  Ens.  C.  L.  Rep.  294.  (e)  Chitty's  Con,  190,  (3d  Jim.  Ed.) 

(c)  1  T.  R.  286. 


§1.]  CONTRACTS  GENERALLY.  283 

such  case,  the  party  paying,  exercises  his  free  will,  and  cannot  be 
considered  as  operated  upon  by  compulsory  circumstances.  But  if 
an  officer  should  demand  of  you  illegal  fees  for  a  tavern  license,  or 
the  keeper  of  a  toll  gate  should  demand  of  you  more  toll  than  ought 
to  be  taken,  »you  would  be  compelled  either  to  submit  to  the  extor- 
tion, or  deprive  yourself  of  the  present  privileges  to  which  you  are 
by  law  entitled;  and  hence,  in  these  and  the  like  cases,  the  person 
paying  may  recover  back  the  amount  improperly  exacted.* 

In  general,  money  paid  by  a  party  under  a  mistake  of  facts  may 
be  recovered  back;  particularly  if  he  has  not  the  means  of  know- 
ledge in  his  power;  but  money  voluntarily  paid  under  a  misappre- 
hension of  the  legal  rights  of  the  party  cannot  in  general  be  recov- 
ered.'' - 

When  a  person  pays,  on  a  note,  account,  or  other  claim,  more 
money  than  is  actually  due,  he  may  recover-i^  back,  unless  it  appear 
that  the  overplus  was  paid  with  a  full  knowledge  that  it  ought  not  ^ 
to  be  paid;  and  in  such  case,  the  circumstance  that  the  party  pay- 
ing had  the  means  of  knowing  how  much  w^as  due  by  a  careful  at- 
tention to  the  state  of  the  transaction,  is  no  defence  to  the  action  for 
the  surplus,  provided  there  be,  in  fact,  a  mistake  in  the  payment.*^ 

Where  a  person,  at  the  time  he  pays  money,  is  either  truly  ac- 
quainted wdth  the  existence  or  non-existence  of  the  facts,  or,  know- 
ing the  facts,  is  so  ignorant  of  their  legal  consequences,  that  he  sup- 
poses he  is  bound  by  law  to  pay  the  money,  when  in  fact,  he  is  not 
bound,  he  cannot,  in  general,  recover  it  back.** 

These  rules  in  relation  to  the  recovery  of  money  paid  by  mistake, 
must  not  be  applied  where  money  is  paid  on  a  judgment;  for  where 
a  person  pays  a  judgment,  however  unjust  —  even  if  it  be  for  a  debt 
which  had  been  before  paid — the  defendant  cannot  compel  the  plain- 
tiff by  set  off,  or  action,  or  otherwise,  to  refund  it.*^(l) 

(a)  9  Eng.  C.  L.  Rep.  232;  2  B.  and  A.  206;  10     (c)  8  Cow.  Rep.  195;  4  Pick.  223. 

Eng.  C.  L.  Rep.  310;  7  Greenl.  134.  (d)  1  Wend.  355;  1  Pet.  Rep.  1. 

(b)  3  Wend.  412.  (e)  2  Cow.  Rep.  428;  2Dall.231;  7T.R.269. 

(1)  In  the  case  of  Mowatt,  et.  al.  vs.  Wright,  (1  Wend.  355,)  the  cases  upon 
the  subject  of  mistake  of  fact  and  of  law,  are  collected  and  reviewed  by  Cliief  Jus- 
tice Savage.  He  says,  in  substance, — "When  there  is  no  fraud  or  mistake  in  mat- 
ter of  fact,  if  the  law  was  mistaken  by  the  person  who  pays  tlie  money,  he  cannot 
recover  it  back.  An  error  of  fact  takes  place,  either  where  some  fact  which  really 
exists  is  unknown,  or  some  fact  is  supposed  to  exist,  which  really  does  not  exist; 
but  when  a  person  is  truly  acquainted  with  the  existence  or  non-existence  of  facts, 
but  is  ipnorant  of  the  leg'al  consequences,  he  is  under  an  error  of  law.  It  is  now 
generally  conceded,  that  the  mistake,  to  entitle  a  party  to  maintain  liis  action,  must 
be  a  mistake  of  fact,  and  not  a  mistake  of  law.  The  cases  founded  on  mistake 
seem  to  rest  on  tiiis  principle,  that  if  parties,  believing-  thata  certain  state  of  thing's 
exists,  come  to  an  agreement,  witii  such  belief  for  its  basis,  on  discovering-  their 
mutual  error,  they  are  sent  back  and  lestored  to  their  original  riglits;  but  wiicn 
money  is  paid  on  a  claim  of  rig-lit,  made  in  g-ood  faith,  and  the  party  paying-  acts 
with  as  full  knowledg-e  of  the  facts  as  the  party  receiving,  then,  although  the  de- 
mand was  unfounded,  tlie  payment  cannot  be  recovered  back,  notwithstanding-  the 
facts  should  prove  to  be  different  from  what  they  were  believed  to  be  by  the  i)arty 
receiving,  but  not  different  from  what  the  party  paying  supposed  tiiey  wei-e.  In 
such  case,  lie  who  pays  the  monc}'  will  be  considered  as  g-ivin,g-  it  to  the  person  to 
whom  he  pays  it;  as  making-  it  his  and  closing  the  transaction." 


284  CONTRACTS  GENERALLY.  [Prt.  2,  Titk,  14, 

What  has  been  said  in  relation  to  the  payment  of  money,  or  more 
money  than  was  due,  by  mistake,  is  eijually  appHcable  to  cases 
where  property  is  thus  paid  by  mistake. 

In  the  orchnary  atlliirs  of  life,  contracts  are  as  various  as  is  the 
business  of  men.  There  are,  iiovvever,  certain  rules  applicable  to 
all  kinds  of  contracts,  whether  in  the  shape  of  notes,  or  bonds,  or 
agreements,  relating  to  work  or  to  property.  These  rules  will  be 
here  mentioned. 

Every  contract,  in  order  to  be  binding,  must  be  made  between 
parties  having  sutiicient  age(l)  and  understanding,  and  the  exercise 
of  their  free  will  at  the  time  of  making  it. 


Sec,    II. OF  THE  WANT  OF  UNDERSTANDING  TO  MAKE  A  CONTRACT. 


A  person  who  is  not  capable  of  understanding  and  transacting 
the  common  affairs  of  life,  is  not  capable  of  binding  himself  by  a 
contract.  A  person  is  not  presumed  to  be  incompetent  or  insane 
until  it  is  proved.  When,  however,  the  general  insanity  of  a  person 
is  proved  by  onfe  party,  it  is  then  for  the  opposite  party  to  show  that 
the  person  w^as  not  insane  at  the  particular  time  when  he  entered 
into  the  contract.* 

A  defendant  may  hiinself  set  up  this  defence.'* 

It  is  laid  down  in  Kent's  Commentaries,  that  a  contract  made  by 
a  person  when  so  drunk  that  he  did  not  know  the  consequences  of 
his  contract,  may  be  avoided  by  him  on  that  account. (2)  When 
such  drunkenness  is  occasioned  by  the  contrivance  of  the  other  par- 
ty, for  the  purpose  of  inducing  the  person  to  enter  into  the  agree- 
ment, it  is  clear  that  the  agreement  may  be  avoided.*^ 


Sec.    III. OF  RESTRAINT  BY  IMPRISONMENT. 


If  a  person  be  unlawfully  imprisoned,  and  then  induced  to  enter 
into  the  contract  to  obtain  his  freedom,  this  will  render  the  contract 
void/  So,  also,  if  a  person  be  falsely,  maliciously,  and  without 
probable  cause,  imprisoned,  under  legal  process,  and  in  order  to 
procure  his  liberty,  make  a  deed  or  contract,  such  deed  or  contract 
will  be  void.®     But  if  a  person  be  maliciously  arrested  and  impri- 

(a)  5  Jolins.  Rep.  144;  3  Bro.  441.  (c)  Chit,  on  Con.  30;  Wright's  Rep.  507. 

(b)  3  Day.  90;  5  Pick.  431;   15  Johns.  Rep.  (d)  Cro.  Jac.  187. 

503;  Str.  Rep.  1104.  (e)  6Mass.  Rep.  512. 

(1)  As  to  contracts  by  tliose  under  ag-e,  see  title.  Infants. 

(2)  2  Kent's  Com.  451.  Tills  principle  slioiikl  he  cautiously  applied,  and  the 
justice  slioiild  not  pcrmt  the  conlruct  to  he  avoided,  iiidcss  it  be  clearly  shown 
that  the  understanding  of  tlie  p;irty  was  so  clouded  as  to  render  liim  incapable  of 
knowing',  at  the  lime,  the  terms  and  effect  of  his  contract. 


§2,  3,  4,  5.]  CONTRACTS  GENERALLY.  285 

soned,  and  freely  and  voluntarily  give  a  bond  for  the  amount,  or 
freely  and  voluntarily  enter  into  any  other  contract,  he  will,  in 
general,  be  bound.  A  power  of  attorne}^,  however,  to  confess  a 
judgment,  executed  by  one  in  custody  on  a  capias,  to  the  plaintiff" 
at  whose  suit  he  is  in  custody,  will  be  void,  unless  some  attorney 
at  law,  in  behalf  of  the  person  in  custody,  and  expressly  named  by 
him,  be  present  and  sign  the  power  of  attorney  as  a  witness.'' 


Sec.  IV. —  OF  restraint  by  threats. 


If  a  person  be  threatened  w^ith  some  personal  injury,  as  death, 
illegal  imprisonment,  assault  and  battery,  or  the  like,  and  under  the 
influence  of  fears  thus  excited,  make  a  contract,  it  will  be  void 
though  upon  good  consideration.(l)  A  threat  to  burn  the  house  of 
the  party,  or  to  take  his  goods,  will  not  render  the  contract  void.'^ 


Sec.  V. —  OF  the  consideration  of  a  contract. 


A  contract,  in  order  to  be  binding,  must  be  made  upon  a  suffi- 
cient consideration.  The  consideration  is  the  price,  motive,  or  in- 
ducement to  make  the  promise  upon  which  the  suit  is  brought. 
An  agreement  to  pay,  or  do  a  thing,  on  one  side,  without  any  com- 
pensation on  the  other,  is  totally  void  in  law.  This  is  called  a  nu- 
dum pactum;  that  is,  a  naked,  or  bare  promise.  Thus:  you  agree 
to  give  me  fifty  dollars,  next  week,  and  fail  to  pay  the  money;  I 
cannot  sue  you  upon  this  promise,  for  which  there  is  no  considera- 
tion. But,  if  I  have  done  any  thing  for  you,  or  at  the  time  that 
you  enter  into  the  contract  to  pay  me  the  money,  I  agree  to  do 
something  for  you,  as  a  consideration  for  your  promise,  such  pro- 
mise will  be  binding.  But  any  trifling  consideration  is  sufficient 
to  prevent  the  agreement  from  being  void  for  w^ant  of  considera- 
tion. 

In  connection  w'ith  this  subject,  it  will  be  proper  here  to  make 
some  remarks  upon  the  statute  in  relation  to  the  right  of  showing  a 
want  or  fliilure  of  the  consideration  of  a  contract. 

The  statute  provides,"^  "-'that  in  any  action  founded  upon  any 
instrument  under  seal,  or  other  written  contract,  for  the  payment  of 
money,  or  the  delivery  of  property,  the  defendant  may  show  the 

(b)  Stat.  665,  $76.  (c)  1  ni.  Com.  131. 

(d)  Stilt.  685. 

(1)  It  has  been  held,  that  if  a  man  should  compel  another  to  enter  into  a  con- 
tract by  threateninfj  to  beat  him,  the  contract  would  be  g'ood,  because  a  man  is 
protected  by  the  law,  and  one  of  ordinary  firmness  would  not  be  aflected  by  suc!i 
threats.  Kut  tlie  law  is  intended  to  protect  the  weak  a.tj-ainst  the  violent;  and  llie 
question  oufjlu  not  to  be,  whether  a  man  is  a  coward,  but  whether  he  was  induced 
to  make  the  contract  by  the  fear  of  personal  violence. 


286  CONTRACTS  GENERALLY.  [Pr/.  2,  7'i7fe  1 4, 

want  or  failure  of  the  consideration,  in  the  whole,  or  in  any  part 
thereof,  of  such  sealed  or  written  instrument.  And  if  any  contract 
under  seal,  or  written,  for  the  payment  of  money,  or  delivery  of 
property,  is  alledged  by  either  party,  in  any  stage  of  the  proceed- 
ings, the  other  party  may  prove,  on  the  trial,  the  want  or  lailure  in 
the  whole,  or  in  part,  of  the  consideration  of  such  sealed  or  written 
instrument:  and  whenever  such  sealed  or  written  instrument,  for 
the  payment  of  money,  or  delivery  of  property,  shall  be  given  in 
evidence,  in  any  court,  by  either  party,  without  being  pleaded,  the 
other  party  may  prove  the  want,  or  failure,  of  the  consideration,  in 
the  whole,  or  in  part,  of  such  sealed  or  other  written  instrument: 
Provided.,  that  nothing  above  mentioned  shall  be  so  construed  as  to 
affect  or  impair  the  right  of  any  bona  fuh  assignee,  or  assignees,  of 
any  sealed  or  other  instrument  in  writing,  made  negotiable  by  the 
law  of  this  State,  when  such  assignment  was  made  before  such  in- 
strument became  due."(l) 

The  words  "specialty"  and  "contract,"  in  the  above  mentioned 
statute,  are  used  in  their  broadest  sense. 

If  I  agree  to  pay  five  hundred  dollars  for  a  horse,  which  every 
body  knows  is  worth  only  seventy-five  dollars,  or  agree  to  pay  fifty 
dollars  for  clearing  an  acre  of  common  wood-land,  and  am  sued  for 
the  money,  I  have  no  right  to  show  that  I  agreed  to  pay  more  than 
the  horse  or  labor  was  worth;  for  here  is  no  failure  of  consideration. 
I  have,  it  is  true,  made  a  bad  bargain;  but  the  statute  will  not  step 
in  and  make  a  better  one  for  me.  It  leaves  me,  as  it  leaves  all 
others,  to  determine  for  myself  the  actual  benefit  to  be  derived  from 
the  contract.  But  suppose,  in  the  case  above  stated,  that  one  who 
was  not  the  owner,  had  sold  me  the  horse,  and  the  true  owner 
claimed  and  took  the  horse  from  me,  and  I  should  then  be  sued  for 
the  five  hundred  dollars  —  there  would,  in  that  case,  be  a  total  fail- 
ure of  consideration  for  my  promise;  and  this  would  furnish  a  com- 
plete defence  to  an  action. 

When  t!here  is  a  consideration,  and  it  is  not  illegal,  its  actual  va- 
lue or  amount  will  not,  in  general,  be  disturbed;  for  every  man 
having  a  legal  capacity  to  contract,  is  supposed  to  be  a  suitable 
judgeof  the  value  he  may  choose  to  set  upon  either  his  property, 
labor,  or  purchase.  If  he  values  them  incorrectly,  it  is  his  own  folly, 
and  the  statute  will  not  aid  him.  Thus,  a  man  may,  if  he  pleases, 
,  sell  a  farm,  M'orth  ten  hundred,  for  ten  dollars,  provided  he  does  not 
injure  his  creditors  by  so  doing;  for  he  may  even  give  it  away,  if  he 
pleases.  The  law  will  protect  him  from  fraud  and  imposition,  but 
not  from  a  mistake  of  his  judgment  in  making  a  bargain.  If  he 
borrows  fifty  dollars,  and  contracts  to  pay  it,  and  ten  dollars  of  the 
money  is  counterfeit,  there  is  a  want,  or  failure  of  consideration  for 
the  ten  dollars,  and  only  forty  can  be  recovered  against  him.     If  he 


(1)  As  to  the  cases  in  which  a  ckfcndant  may  set  up  a  want,  or  failure,  of  con- 
sideration, as  a  defence  to  an  action  on  a  negotiable  bond,  promisssory  note,  and 
bill  of  excbang-e,  see  Title  31,  Sec.  14. 


§5.]  CONTRACTS  GENERALLT.  287 

agrees  to  pay  a  man  fifty  dollars  for  mending  a  plough,  and  the  man 
does  it,  although  it  may  be  worth  only  twenty-five  cents,  he  is 
bound  to  pay  the  fifty  dollars.  The  consideration,  therefore,  for  a 
promise,  is  sufficient,  if  it  arise  from  any  act  of  the  plaintiff",  from 
which  the  defendant  or  a  stranger  derives  a  benefit  or  advantage, 
however  small,  if  such  act  be  performed  with  the  consent,  express 
or  implied,  of  the  defendant.* 

If  A  promise  to  pay  B  fifty  dollars,  provided  he  will  endeavor  to 
do  a  certain  act,  if  B  should  show  that  he  did  his  endeavor,  it  will 
be  a  sufficient  consideration  to  support  the  promise,  and  entitle  B 
to  recover  the  money,  whether  he  succeeded  or  not.''  The  consider- 
ation, therefore,  for  a  promise,  is  sufficient,  if  it  subject  the  plaintiff 
to  any  inconvenience,  detriment,  or  obligation,  without,  in  fact,  be- 
nefiting the  defendant,  or  any  other  person.*^ 

When  there  are  promises  on  both  sides,  the  promise  on  one  side 
is  a  good  consideration  for  the  promise  on  the  other. 

A  promise,  in  consideration  of  something  already  done  and  past, 
will  not  be  binding,  unless  such  past  consideration  has  been  per- 
formed at  the  request  of  the  party  promising.  But,  in  general,  the 
law  will  infer  a  request,  from  the  beneficial  nature  of  the  consider- 
ation;*^ as,  where  a  man  pays  a  sum  of  money  for  me,  without  my 
knowledge,  and  afterwards  I  agree  to  the  payment.® 

If  your  house  is  on  fire,  and  I,  with  others,  aid  in  putting  it  out, 
and  you  afterwards  promise  to  pay  me  for  my  services,  it  could 
hardly  be  inferred  that  you  requested  my  services;  and  if  this  in- 
ference could  not  be  made,  you  are  not  liable  on  this  promise.  But 
if  I  performed  ordinary  work  for  you,  on  your  farm,  and  you  after- 
wards promised  to  pay  me,  it  might  be  very  fairly  inferred  that  I 
did  the  work  at  your  request,  and  not  gratuitously,^  and  your  sub- 
sequent promise  would  therefore  be  good. 

A  promise  by  D,  to  S,  that  S  may  pass  and  repass  over  the  land 
of  D,  is  only  a  gratuitous  license,  and  revocable  at  pleasure;  and  if 
D  afterwards  fence  and  shut  up  the  land,  so  that  S  cannot  pass  and 
repass,  no  action  will  lie.''  A  gratuitous  license,  however,  cannot, 
in  general,  be  countermanded,  after  the  person  licensed  has  so 
changed  his  condition,  in  consequence  of  the  license,  that  the  coun- 
termand would  leave  him  in  a  worse  situation  than  he  would  have 
been  in,  had  the  license  never  been  granted.'  The  application  of 
this  rule  to  mill  races  cut  through,  and  buildings  erected  on,  the 
lands  of  others,  will  be  obvious. 

When  a  man  ought  to  do  a  thing,  which  he  is  not,  in  law,  bound 
to  do,  and  promises  to  do  it,  this  mere  moral  obligation,  it  is  said,  is 
not  in  itself  a  sufficient  consideration  to  support  the  promise,  except 
in  those  cases  in  which  there  was  a  prior  legal  obligation. 

If  a  person  is  prevented,  by  the  statute  of  limitations,  from  reco- 
vering a  debt,  there  is  a  moral,  and  there  was  a  prior  legal  obliga- 

(a)  2  Saund.  137,  (e).    7  Eng.  C.  L.  Rep.  45.       (e)  14  Johns.  Rep.  382. 

(b)  Yelv.  11.  (K)  7  Id.  87;  10  Id.  243. 

(c)  3  Burr.  1672;  1  Saund.  PI.  S;  Ev.  147;  (1')   10  '''•  246. 

2  I'pt.  Rep.  182;  2  Jobns.  Cas.  52,  (i;  20  Eng.  C.  L.  Rep.  287;  8  East's  Rep.  303; 

(d)  1  Saund.  264,  note  1.  7  Taunt.  38 1. 


288  CONTRACTS  GENERALLY.       [Pr^  2,  T«7Ze  14, 

tion,  on  the  part  of  the  debtor,  to  pay  it;  and  hence,  his  promise 
to  pay  it  is  bindini>;.(l) 

This  rule  should  be  noticed  in  relation  to  a  promise  without  con- 
sideration: that,  although  no  suit  can  be  brought  upon  it,  yet,  if  it 
is  performed,  both  parties  are  bound  by  it.  For  instance:  if  you 
promise  to  give  me  a  horse,  or  work,  for  me  without  compensation, 
I  cannot  sue  you  for  not  doing  it;  but  if  you  deliver  the  gijt,  it  is 
mine,  or  if  you  do  the  work,  you  cannot  recover  from  me  any 
compensation. 


Sec.  VI. OF  AN   ILLEGAL  CONSIDERATION. 

As  the  object  of  the  law  is  to  repress  vice  and  immorality,  and 
promote  the  wellfare  of  society,  all  promises  which  originate  in  a 
breach  or  violation  of  its  principles  and  enactments,  are  void.  The 
law  will  not,  therefore,  lend  its  aid  to  enforce  any  contract  which 
will  lead  to  the  commission  of  crime  or  immorality.  An  agreement, 
in  consideration  of  future  illicit  cohabitation  between  the  parties; 
or  to  pay  rent  out  of  the  profits  of  prostitution,  where  the  house  is 
rented  for  that  purpose;*  or  to  pay  the  price  or  value  of  immoral 
pictures;''  or  to  pay  for  building  a  nine-pin  alley  ;'^  or  to  pay  a  wa- 
ger or  bet;  or  to  pay  for  the  use  of  a  billiard,  or  other  gambling  ta- 
ble;*^ or  to  pay  money  lost  at  gaming;®  or  to  pay  for  suppressing  or 
stifling  a  criminal  prosecution;^  or  to  pay  an  officer  for  neglecting  to 
perform  his  duty:''  these  and  the  like  contracts  are  illegal  and  void. 
But  past  seduction  and  cohabitation  may  form  the  consideration  of 
a  promise;  as  the  object  then  is  to  redress  an  injury  inflicted  on  the 
woman.'  So,  an  action  for  clothes  sold  to  a  prostitute,''  or  for 
washing  her  apparel,^  cannot  be  defeated  merely  by  showing  that 
the  plaintiff  was  aware  of  the  defendant's  unfortunate  situation,  and 
from  the  nature  of  the  articles,  the  use  to  which  she  would  apply 
them.  When  the  contract  grows  immediately  out  of,  and  is  con- 
nected with  an  illegal  or  immoral  act,  a  court  of  justice  will  not 
lend  its  aid  to  enforce  it.  But,  if  the  promise  is  unconnected  with 
the  illegal  act,  and  is  founded  on  a  new  consideration,  it  is  binding, 
although  the  plaintiiV  knew,  and  was  the  contriver  and  conductor 
of  the  illegal  act.""  Thus:  if  you  are  indebted  to  .T.  S.  on  aeon- 
tract  forbidden  and  unlawful,  and  you  pay  the  money  to  C.  for  the 
use  of  J.  S.,  and  C.  refuses,  contrary  to  his  implied  contract,  to  pay 
the  money  to  J.  S.,  the  law  will  make  him  do  it.  In  this  case,  J.  S. 
could  not  have  recovered  against  you;  but  when  the  money  came 

(a)  1  R.  iSl- P.340,341.  (b)  Cliit.  on  Con.  G9. 

(b)  1  Camp.  34!i.  (i)  2  Wills.  3.i9. 

(c)  eoiiio  Rep.  444.  (k)   1  Cainpl).  J48. 

(d)  13  Johns.  Hep.  85.  (I)   1  B.  If  P.  340. 

(el  Stat.  4-2H,  427.  (m)  11  Wliea.  258;  Conds.  300. 

(g)  4  Har.  400. 

(1)  The  cases  cited  by  W'niGiiT,  J.,  in  5  Ohio  Hep.  58,  are  reviewed  in  3  Pick. 
207;  and  see  3  Bos.  &  Ful.  249,  note  [a],  7  Cun.  57;  22  Ei^g.  C.  L.  Hep.  187. 


§6.]  CONTRACTS  GENERALLY,  289 

to  C,  a  new  promise  was  raised,  on  a  new  consideration,  not  infect- 
ed with  the  vice  of  the  original  contract.  Besides,  the  law  will  not 
permit  a  third  person,  ^^'ho  is  only  incidentally  connected  with  the 
transaction,  to  set  up  illegality  in  the  contract  between  the  princi- 
pal parties,  and  thus  commit  a  fraud.  Money,  however,  advanced 
by  one  person  to  another,  with  a  knowledge  that  it  is  to  be  applied 
in  the  furtherance  of  an  illegal  p.urpose,  cannot,  after  it  has  been  so 
applied,  be  recovered;  for  if  it  be  unlawful  in  one  man  to  pay  mo- 
ney, how  can  it  be  lawful  in  another  to  furnish  him  with  the  means 
of  payment?  If  a  party,  who  can  resist  a  claim  on  account  of  its 
illegality,  waves  that  privilege  and  fulfills  the  contract,  he  will  not 
be  permitted  to  recover  the  money  bnck,'^  So,  in  general,  where  a 
suit  is  brought  to  recover  money  or  damages  for  not  performing  a 
promise,  the  consideration  for  which  is  illegal,  or  against  public  po- 
licy, the  court  will  not  interfere  for  the  benefit  of  either  party,  but 
leave  the  parties  precisely  where  they  were  when  the  suit  was  com- 
menced.'' Thus:  if  A  gives  B  one  hundred  dollars,  to  bribe  him  to 
do  an  unlawful  or  immoral  act,  (as,  for  instance,  to  vote  for  a  certain 
candidate  at  an  election,)  which  B  promises  to  do;  whether  B  does 
the  act  or  not,  A  cannot  recover  back  the  money,*^  So,  if  A  pro- 
mises to  give  B  one  hundred  dollars,  to  vote  for  a  certain  candidate, 
and  B  does  it,  he  cannot  recover  of  A  the  one  hundred  dollars.  If 
A  delivers  to  B  a  horse,  upon  condition  that  he  will  do  an  unlawful 
or  immoral  act,  in  this  case  B  will  hold  the  horse,  free  from  the  con- 
dition. If  A  gives  B  a  bond,  or  covenants  to  convey  a  farm  to  B, 
as  soon  as  B  shall  perform  a  certain  unlawful  act,  here  the  bond  or 
covenant  is  void,  and  whether  B  performs  the  unlawful  contract  or 
not,  he  will  not  be  entitled,  in  law,  to  claim  the  farm."^ 

A  security  given  by  an  insolvent  to  a  creditor,  to  induce  him  not 
to  oppose  his  discharge  under  the  insolvent  debtor's  act,  is  void. 

All  agreements  which  have  for  their  object  a  general  restraint  of 
trade,  whether  they  be  by  covenant,  bond,  or  simple  contract,  and 
whether  with  or  without  consideration,  are  void;  but  contracts  in 
partial  restraint  of  trade,  such  as  not  to  carry  on  business  within  a 
certain  town,  or  within  a  limited  distance,  or  to  deal  with  particular 
persons,  are  legal,  if  made  on  an  adequate  consideration,  and  the 
restraint  be  not  unreasonable. 

It  is  not  unusual,  particularly  in  leases  of  houses  in  towns,  to  in- 
sert a  covenant  restraining  the  lessee  from  carrying  on,  or  assigninof 
the  premises  to  persons  carrying  on,  obnoxious  trades;  and  some- 
times there  is  a  restriction  in  a  lease,  that  the  premises  shall  only 
be  used  for  the  purpose  of  one  specified  trade;  as  is  the  case  in  leases 
of  public  houses.  It  appears  that  such  restrictions  are  not  only  legal, 
but  usual  and  common  in  some  trades. 

When  the  illegal  act  is  of  such  a  nature  that  the  good  part  of  the 
consideration  can  be  separated  from  that  which  is  bad,  and  is  en- 
tirely independent  of  it,  the  good  part  shall  stand,  and  the  rest  be 
held  void.  But  if  the  part  which  is  good  depends  upon  that  which 
is  bad,  tlie  whole  instrument  or  promise  is  void;  and  this  seems  to 

(a)  6  Cow.  Rep.  431.  (c)  Cowp.  341. 

(b)  1  Hall's  Rep.  300.  (d)  2  Wils.  133;  5  T.  R.  599. 

37 


290  CONTR.ACTS    GENKRALLY.  [Prt.  2^  TUk  ]  4, 

he  the  rule,  whether  the  matter  be  void  by  statute,  or  at  common 
law.* 


Sec.  VII.  —  iioAv  contracts  should  re  construed  and  performed. 

In  the  construction  of  covenants  the  Ibllowing  rules  collected  from 
the  authorities,  may  be  found  useful. 

First.  When  the  covenant  is  expi'ess^  there  must  be  an  absolute 
performance,  nor  will  it  be  discharged  by  any  collateral  matter 
whatsoever.  As  if  a  lessee  covenant  to  p;iy  rent,  and  the  premises 
be  rendered  uninhabitable  by  being  totally  burnt  down,  or  through 
any  other  cause,  he  will  continue  liable  to  pay  the  rent  during  the 
term,  though  he  have  no  enjoyment  of  the  jnemises,  for  he  is  bound 
by  his  express  covenant.  And  even  if  the  landlord  be  bound  to  rebuild 
the  premises,  and  neglect  to  do  so,  it  will  be  no  answer  to  an  action 
for  the  rent,  because  the  damnges  arising  to  the  lessee  from  such 
negligence  are  unliquidated,  and  the  tenant  may  have  his  action 
therefor.     The 

.  Second  rule  is,  that  covenants  are  to  be  so  expounded  as  to  carry 
into  effect  the  intention  of  the  parties;  and  this  intention  is  to  be 
collected  from  the  whole  context  of  the  instrument,  so  as  to  make 
one  entire  and  consistent  construction  of  the  wbole.  Therefore,  if 
a  person  performs  a  covenant  according  to  the  letter,  and  docs  any 
act  to  defeat  its  intent,  it  is  not  a  legal  performance.  If  I  covenant 
that  I  wiH  leave  all  the  timber  which  is  growing  on  the  land  I  hire, 
upon  the  land  at  the  end  of  the  term,  and  then  cut  it  down,  though 
I  leave  it  on  the  land;  or  if  I  covenant  to  deliver  so  many  yards  of 
cloth,  and  I  cut  it  in  pieces  and  then  deliver  it,  my  covenant  is  bro- 
ken; for  the  law  regards  the  real  and  faithful  performance  of  con- 
tracts.    The 

Third  'rule  is,  that  when  ambiguous  expressions  are  used,  or  when 
the  sense  of  the  words  is  in  eqidlibrio.,  they  are  to  be  taken  most 
strongly  against  the  covenantor.     The 

Fourth  rule  is,  that  the  contract  shall  be  construed  so  as  to  sup- 
port rather  than  defeat  the  transaction.     The 

Fifth  rule  is,  that  when  no  time  is  limited  for  the  doing  of  a 
thing,  it  shall  be  done  in  a  reasonable  time. 

It  is  an  established  rule,  that  when  a  party  by  his  own  contract 
creates  a  duty  or  charge  upon  himself,  he  is  bound  to  make  it  good 
if  he  can,  notwithstanding  any  accident  by  inevitable  necessity,  be- 
cause he  might  have  provided  against  it  by  his  contract.  Therefore 
if  a  man  covenants  to  deliver  a  certain  quantity  of  wheat  at  Cincin- 
nati, the  overturning  of  the  boat  by  a  tempest  will  not  excuse  him; 
the  wheat  may  still  be  procured  and  should  be  delivered. (1) 

(a)  2  Kent's  Coin.  468.     See  1  Leigli.  40. 


(1)  See  Part  2,  Title  32,  Sec.  1. 


§7,8.]  CONTRACTS  GENERALLY.  291 

Bat  it  is  said  that  if  the  performance  of  the  covenant  be  render- 
ed impossible  by  the  act  of  God,  the  covenantor  shall  be  discharged. 
As  if  a  lessee  covenants  to  leave  a  wood  in  as  good  a  plight  as  the 
wood  was  at  the  time  of  the  lease,  and  afterwards  the  trees  are 
blown  down  by  the  tempest;  or  if  one  covenants  to  serve  another 
for  seven  years  and  he  dies  before  the  expiratio^i  of  the  seven  years, 
the  covenant  is  discharged,  because  the  act  of  God  defeats  the  pos- 
sibility of  performance.  So,  if  a  man  covenant  to  deliver  a  horse 
to  another  on  request,  and  the  horse  die  without  his  default  before 
request,  the  death  of  the  horse  being  the  act  of  God,  he  will  be 
discharged  from  the  performance  of  his  covenant.  It  is  laid  down 
in  Rol.  Ab.,  ^'If  a  man  covenant  to  build  a  house  before  such  a 
day,  and  afterwards  the  plague  is  there  before  the  day,  and  con- 
tinues there  till  after  the  day,  this  will  excuse  him  for  the  breach 
of  covenant  for  the  not  doing  thereof  before  the  day,  for  the  law 
will  not  compel  him  to  venture  his  life  for  it,  but  h«  may  do  it 
after,"' 

The  covenantor  will  be  discharged  from  his  contract,  if  by  any 
act  or  omission  of  the  covenantee  he  be  incapacitated  to  perform 
it.  As  if  a  lease  for  years  covenants  to  drain  the  water  out  of  the 
land,  or  to  build  a  house  before  a  certain  day,  and  the  lessor  enters 
before  the  day  and  holds  the  lessee  out. 

Sec.  VIII. OF  THE  ALTERATION  OF  CONTRACTS. 

A  contract,  (whether  under  seal  or  not,)  is  void,  which  has,  after 
its  delivery,  been  altered  by  a  party  interested,  without  the  consent 
of  the  other  party  to  it.*  When  a  person  is  detected  in  such  a 
fraud,  the  law,  as  a  punishment  to  the  guilty  party,  will  not  permit 
him  to  derive  any  benefit  from  the  instrument,  and  therefore  holds 
the  party  who  did  not  consent  to  the  alteration,  discharged  from 
performance. 

Three  things  are  requisite  to  render  an  instrument  void  by  alter- 
ation: 

1.  The  alteration  must  be  made  by  the  plaintiff,  or  a  party  inter- 
ested in  the  instrument.  If  made  by  accident,  or  by  a  stranger,  the 
instrument,  as  it  was  prior  to  its  alteration,  can  be  enforced,  and 
will  be  valid.'' 

2.  The  alteration  must  be  in  a  material  part.  The  erasure  or 
addition  of  a  word,  not  aflecting  the  sense,  is  of  no  consequence, 
though  made  by  the  plaintiff,  or  a  stranger,  w^ithout  the  consent  of 
the  odier  party.  The  substantial  alteration,  however,  of  a  mate- 
rial part  by  a  party  interested,  discharges  the  defendant,  even  if  the 
alteration  is  a  benefit  to  the  latter. 

3.  The  alteration  must  be  made  without  tlie  express  or  implied 
assent  of  those  who  seek  to  take  advantage  of  it. 

All  that  is  meant  by  a  contract  being  void  by  alteration,  is  this: 
that  the  party  who  made  the  alteration  loses  all  right  and  remedy 

(a)  Some  of  tlic  niitlioritins  go  so  far  na  to  say         the  deed  as  to  liim.     Slicp.  Toucli.  G9;    11 
that  ltiou!,'li  tlie  ultcralion  he  iiniiiatcrial,         Co.  27;  8  Cow.  Kep.  71. 
yet  if  done  by  a  party  interested,  it  avoids     (1))  6  Cow.  Rep.  746;  15  Jolins.  Rep.  297. 


292  CONTRACTS  GENERAL!, V,  [^]*rt.  2,  Title  14, 

upon  it;  but  all  other  pnrties  thereto,  have  the  same  right  and  rem- 
edy as  it"  the  contract  had  not  been  altered. (l) 

It  is  said  that  an  erasure  or  interlineation  shall  be  presumed  to 
have  been  made  alter  the  execution  of  the  instrument,  unless  the 
contrary  is  shown. "^  But  this  does  not  seem  right  unless  there  be 
something  suspicious  in  regard  to  the  interlineations,  which  may 
reciuire  explanation. 

8kc.  IX. OF  CONTRACTS   NOT  TO  nE  rKUFOpMEU  WrfHIN  ONE  YEAR, 

When  an  agreement  is  made  for  any  work,  or  service,  or  act, 
and  it  is  either  expressly  agreed,  or  by  necessary  implication  under- 
stood, that  the  party  shall  have  more  than  a  year  to  perform  it, 
such  agreement  uiust  be  reduced  into  writing;  lor  by  statute**  it  is 
enacted,  "that  no  action  shall  be  brought  upon  any  agreement  that 
is  not  to  ba  performed  within  one  year  from  the  making  thereof, 
unless  the  agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof  shall  be  in  writing  and  signed 
by  the  party  to  be  charged  therewith,  or  some  other  person  there- 
unto by  him  or  her  lawfully  authorized." 

If  no  time  be  stipulated  for  the  performance  of  the  agreement, 
and  it  is  capable  of  being  performed  within  a  year  from  the  making 
thereof,  it  is  not  within  the  statute;  though  it  be  not  actually  per- 
formed till  after  that  period.  Thus:  a  parol  promise  was  made,  to 
pay  so  much  money  upon  the  return  of  such  a  ship,  which  ship  hap- 
pened not  to  return  within  two  years'  time  after  the  promise  was 
made;  it  was  held  that  this  promise  was  not  void  by  the  statute,  for 
by  possibility,  the  ship  might  have  returned  within  tlie  year;  and 
that  the  statute  extended  only  to  such  promises  as  are,  at  all  events, 
or  by  the  exj)ress  appointment  of  the  parties,  not  to  be  performed 
within  a  year.*^ 

A  contract  for  a  year's  service,  to  commence  at  a  subsequent 
day,  is  voi,d,  unless  it  be  in  writing;  and  therefore  no  action  can  be 
maintained  for  the  breach  of  a  verbal  contract  made  on  the  27th  of 
May,  for  a  year's  service,  to  commence  on  the  30th  of  June  follow- 
ing.^ In  such  case  a  complete  performance  within  a  year  from  the 
time  the  contract  was  entered  into,  could  not  by  possibility  happen. 
An  agreement,  however,  for  goods,  to  be  delivered  by  one  party, 
in  six  months,  and  to  be  paid  for  in  eighteen  months,  being  after 
more  than  a  year  is  elapsed,  is  binding,  though  not  in  waiting;  for 

(c)  1  Dall.  67;  1  Pet.  Rep.  369;  5  Bing.  133;     (d)  Stat.  423,  §5 

but  sec  1  Kil).  22.  (e)  1  Salk.  280;  10  John's  Rep.  244.  11  East,  142. 

(g)  11  East.  142;  1  Barn,  and  Aid.  723. 


(1)  It  has  been  deckled,  in  New  York,  that  the  alteration  of  a  deed  for  lands, 
in  a  material  or  immaterial  part,  by  one  claiming  a  benefit  under  it,  will  not  divest 
him  of  tlie  estate,  but  avoids  siicli  covenants  as  the  deed  contains;  and  that  such 
material  or  immaterial  alteration  in  a  bond  or  other  contract,  avoids  the  instru- 
ment, both  as  to  tlie  riglit  and  remedy  of  the  person  making-  the  alteration. 
Lewis  V.  Payn.  8  Cow.  71;  but  see  Corny.  Dig.,  Title  Fait.  F.  (I)  As  to  the 
alteration  of  a  note  or  bill  of  exchange,  see  Part  2,  Title  31,  Sec.  16. 


Tit.  15.]  CONTRACTS  GENERALLY.  293 

all  on  one  side  to  be  performed,  viz.,  the  delivery  of  the  goods,  is  to 
be  done  within  the  year;  whereas,  in  the  above  instance,  the  ser- 
vice or  labor  could  not  by  possibibty  be  completed  within  that 
period.'^ 

(a)  Id.  lb.  per  Abbott,  J.  and  11  East,  142. 


TITLE  XV. 


CORONER'S  INQUEST. 

Whenever  the  office  of  coroner  becomes  vacant  in  any  county, 
by  death,  resignation,  expiration  of  the  term  of  office  or  otherwise, 
any  justice  of  the  peace  of  the  township  in  which  the  dead  body  of 
any  person  supposed  to  have  come  to  his  death  by  violence  or  casu- 
alty may  be  found;  or  if  there  should  be  no  justice  of  the  peace  for 
such  township,  then,  any  justice  of  the  peace  of  the  county,  is  vest- 
ed with  all  the  powers,  and  may  perform  the  duties,  appertaining 
to  the  office  of  coroner,  so  far  as  respects  the  duty  of  the  latter  to 
hold  inquisition  of  a  dead  body.*^  It  therefore  becomes  necessary, 
to  point  out  the  duties  of  a  coroner,  in  such  cases. 

Whenever  information  is  given  to  a  coroner,  that  the  dead  body 
of  any  person  supposed  to  have  come  to  his  or  her  death  by  violence, 
has  been  found  within  his  county,  it  is  the  duty  of  such  coroner,  to 
issue  his  warrant,(l)  directed  to  any  constable,  of  any  county,  in 
which  such  body  may  be  found;  or  if  in  his  opinion,  the  emergency 
shall  require  it,  to  any  discreet  person  of  the  county,  commanding 
such  constable  or  other  person,  to   forthwith  summon  a  jury,  of 

(b)  Stat.  526,  $109. 

(1)   Form  of  Wurnint  or  Venire  of  a  coroner,  for  a  jury: 

Tlie  State  of  Ohio, township,  county,  ss. 

To  any  constable  of  said  county,  [or,  to  J M ,  of  said  county,]  greeting: 

Wlicreas,   information  has  been  given   to  me,   G M ,  a  justice  of  the 

peace,  in  and  for  said  townsiiip,  (there  being  no  coroner  of  said  county,)  that  tlie 
dead  body  of  a  man  [ar  woman]'lias  been  found  at  \Jiere  desa-ibc  Ihe  place,]  in  said 
township,  su|)p()sed  to  liave  come  to  liis  [or  her]  dcatii  by  vioknce:  You  are  there- 
fore commanded  to  summon  twelve  jurors,   resident  of  said  county,  and  having 

tlie  qualifications  of  electors,   to  appear  forthwitli,    [or,  on  the day  of , 

A.  D.  ,  at  —  o'clock,  — ,]  at  said  place,  where  said  body  was  found,   and 

is  now  lying,  to  inquire,  and  true  presentment  make,  as  to  tlie  manner,  and  by 
whom  the  deceased  came  to  his,  [or  her,]  death;  and  of  this  writ  make  legal  ser- 
vice and  due  return. 

Given  under  my  hand  and  seal  this  —  day  of ,  A.  D.  : 

G II ,  J.  p.,  [Seal.] 

and  coroner  for  the  time  being. 


294  coroner's  inquest.  [Prt.  2, 

twelve  men  of  the  county,  havin<T  the  (jualifications  of  electors,  to 
appear  at  the  place  where  the  dead  hody  shall  he,  and  at  the  time 
specified  in  said  warrant,  to  intpiire  concerning;  the  same;  and  the 
constable  must  forthwith  execute  and  return  the  same,  according  to 
the  command  tiiereof.*(l) 

The  coroner  may  fill  the  panel,  if  any  of  the  jury  are  absent. 
He  administers  an  oath(2)  to  them,  and  he  may  issue  subpoenas  to 
such  witnesses,  as  to  him  shall  seem  proper.(3)  lie  also  has  powder 
to  administer  such  oaths,  or  afhrmations,  as  are  usual  in  other  cases, 
Tiie  testimony  of  the  w^itnesses  must  be  reduced  to  writing,  and  be 
signed  by  the  jury  and  coroner.(4) 

Tiie  coroner,  with  the  jury,  inquire  by  an  examination  of  the  dead 
body,  and  by  the  testimony  of  witnesses,  in  what  manner  the  de- 
ceased came  to  his  death;  and  if  by  violence  from  any  person,  by 
whom,  and  w'hether  as  principals  or  accessories,  before  or  after  the 
fact,  together  with  all  the  circumstances  in  relation  thereto.* 

(a)  Stat.  860,  $9. 

(1)  Form  of  the  return  of  a  warrant. 
June  5,   1847- 

I  execiiic'd  tliis  writ  by  summoninpf  A T? ,  [&c.  here  naming  the  Jury,] 

residents  of county,  and  having-  the  qualifications  of  electors,  according  to  the 

cominand  hereof. 

Fees,  .  I J ,  Constable. 

(2)  Form  of  the  oath  of  the  jury. 

You  do  -solemnly  swear  in  tlie  i)resence  of  Almighty  God,  the  searclier  of  all 
hearts,  tliat  you  will  dilig-ently  inquire,  and  true  presentment  make,  according  to 
the  best  of  jour  understanding,  in  what  manner,  and  Ijy  wliom  the  deceased,  whose 
body  is  lure  present,  came  to  his,  [or  her,]  death;  and  that  you  will  dtliver  to  me, 
a  true  inquest  tiiereof,  in  writing,  and  by  j'ou  severally  sul)scribed,  without  unneces- 
sary diday,  according  to  the  evidence  that  sliall  be  submitted. 

(3^    Form  of  subpccna. 

The  State  of  Ohio,  Township,  Count}',  ss. 

To  any  constable  of  said  township,  greeting: 

You  are  hereb_v  commanded  to  summon  A B ,  to  appear  before  me,  at 

• ,  [here  describe  the  pluce  where  the  inquisition  is  held,']  in  said  township,  on  the 

day  of ,  in  the  }ear ,  at o'clock,  A.  M.  [or  forthuith,]  to  give 

evidence  before  an  inquisition,  then  and  there  to  be  held,  upon  the  dead  body  of 
a  person,  there  latily  found.  Hereof  fail  not  under  tlje  penalty  of  the  law;  and 
have  )'ou  then  and  tliere  tliis  writ. 

Given  under  my  hand  and  seal,  this day  of ,  A.  1).  18 — . 

(Sef//.')     G II ,  J.  V.  of  said  township; 

and  coroner  of  said  county,  for  the  time  being. 

(4)   Form  of  depositions  taken  at  the  inquest: 
The  State  of  Ohio, Townsiiip,  County,   ss. 

An  inquest  by  the   undersigne(l,  jury,   he,  (luly  impanneled  and  sworn,   was 

held  on  the day  of ,  in  the  year ,  at  [here  describe  the  place  where  the 

inquisition  is  hela,]  in  said  township,  over  tlie  dead  body  of  S T ,  [or  if  the 

name  he  unknown,  say,  of  a  certain  person,]  who  was  supposed  to   iiave  come  to 

his  death  by  violence.      The  undersigned  G M ,  a  justice  of  the  peace,  in 

and  for  said  township,  then  and  there  acted  as  coroner,  there  being  no  coroner  of 
said  county.  Tiie  following  is  the  testimony  of  the  witnesses,  then  and  there  exam- 
ined, before  said  justice  and  jui-y,  and  which  was  then  and  there  reduced  to  writing, 
in  jjursuance  of  the  statute  in  such  case  made  and  provided. 

A B ,  being  duly  sworn,  stated  that  [here  set  forth  the  testimony  of  the 

witness.]  [Signed]  A B . 

C— —  D ,  being  duly  sworn,  stated  that,  Sec. 

[Signed]  C D . 

In  testimony  whereof  we  have  hereunto  set  our  hands. 


Title  15.]  coroner's  inquest.  205 

The  jury  must  draw  up  their  verdict  of  the  facts  by  them  found, 
in  writing,  and  severally  subscribe  the  same,(l)  and  return  it  to  the 
coroner*. 

The  coroner,  if  he  thinks  proper,  may  cause  the  witnesses  to  en- 
ter into  recognizance,  with  sureties  for  their  appearance  at  the  next 
term  of  the  court  of  common  pleas. (2) 

Jf  the  witnesses  neglect  to  enter  into  recognizance  and  give  se- 
curity as  required,  the  coroner  may  cause  them  to  be  committed  to 
the  jail  of  the  county. 

If  the  person  charged  hy  the  return  of  the  jury,  as  guilty  of  tak- 
ing the  life  of  the  deceased,  is  present,  the  coroner  must  arrest  him, 
and  convey  him  before  a  proper  officer  for  examination;  or  if  not 
present,  inform  one  or  more  justices  of  the  peace,  and  the  prosecu- 
ting attorney,  (if  within  the  county.)  of  the  facts  found  by  the  jury.* 

(a)  Stat.  861,  §10. 

(1)   Form  of  the  verdict  of  tlie  jurj^ 

We,  llie  iindersig"necl,  jurors   impanneled  and  sworn  on  tlie day  of 

in  the   3-eur  ,   iit  the   township  of   ,   in  Uie   county  of ,    by  G 

H ,   a  justice  of  the  peace  in  and  for  the  township  of ,  in  said  county, 

(acting- as  coroner  for  the  time  being-,)   to  inquii-e,   and  true  presentment  make, 

in  what  maimer,  and  by  whom   C D ,    [or,   if  the  name  of  the  deceased  be 

unhiKiwn,  say,  a  person,]  whose  body  was  found  at ,  [here  describe  the  place,} 

on  the  day  of ,    in  the   year  ,    came   to  liis   deatli.      After  having- 

beard  the  evidence,  and  examined  said  body,  we  do  find,  tliat  the  deceased  came 
to  his  death  by  [drovtning  in  Sec,  stating  the  circumstances  us  far  as  hiwivn,  ur  say, 
by  the  visitation  of  God,  in  a  natural  way,  and  not  by  means  of  any  violence;  or 
say,  from  being-  thrown  from  his  wag-on  wiiile  his  horses  were  running-  aw.iy,  and 
receiving  tiiree  mortal  bruises  and  wounds,  on  &.c.  here  state  all  the  circumstances 
C07icrrning  the  death,  or  say,  do  find  that  the  deceased  came  to  his  death  in  a  way 
and  manner  unknown  to  the  jury;  or  say,  do  find  that  tiie  deceased  came  to  his 
dealli  by  violence;  and  tliat  said  body  lias  upon  it  the  following-  marks  and  wounds 
inflicted  by  A B ;  or  say,  if  the  person  who  committed  the  injury  is  un- 
known, by  some  person  or  persons  unknown  to  tiie  jury,  as  the  case  7iiaij  be,  and 
which  tlie  said  jur}'  d')  find,  caused  tiie  immediate  deatli  of  said  person,  whose 
body  was  found  as  aforesaid,  to  wit:  here  describe  the  marks  and  wounds  upon  the 
body,  if  am/.]  And  we  the  jury  do  further  find  that  one  L S was  con- 
cerned in  the  perpetration  of  said  violence  and  death,  as  an  accessory  before  [or 
after]  the  fact. 

Given  under  our  hands,  at  the   time  and  place  of  said  inquisition,  above  men- 
tioned. 

lyte  Jury  will  subscribe  their  names  to  the  verdict. 

(2)   Form  of  the  recognizance  of  a  witness. 
The  Slate  of  Ohio,  ~ Township, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  A.  D.  ,  before  me,  G 

H ,  a  justice  of  tlie  peace  in  and  for  said  township  and  county,  acting-  as  cor- 
oner for  the    time   being;   personally  apjieared  A II ,   and  J S 

[the  surety,]  wiio  acknowU-dg-t  d  themselves  to  owe  the  State  of  Ohio,  the  sum  of 

dollars,   to  be   levied  upon  their  g-oods  and   chattels,    lands  and  tenements, 

upon  this  condition:  that  if  the  said  A II shall  appear,  on  the  first  day  of 

the  next  term  of  the  coui-t  of  com;non  pleas,  to  be  holdcn  in  said  count}',  to  tes- 
tify as  to  his  knowledg-e  of  the  ciri'umstances  relating  to  the  decease  of  C ■ 

D ,  [or,  if  the  name  of  the  deceased  is  unknown,  say,  a  person]  who  is  sup- 
posed to  have  come  to  his  death  by  violence,  continue  from  day  to  day,  and  not 
depart  the  court  without  leave,  then  the  above  recog-nizaiice  to  be  void;  other- 
wise to  be  and  remain  in  full  force  in  law. 

[Signed]  A II . 

Attest,  G H ,  J.  I',  and  coroner  for  llie  time  being-,  of  said  county. 


996  coroner's  inq,uest.  [Prt.  2, 

In  such  case,  the  justice  hiuiself,  \vho  is  acting  as  coroner,  could  ar- 
rest, and  as  a  justice  of  tiie  peace,  proceed  with  the  examination  of 
the  guilty  person,  and  commit  him  to  prison,  as  in  other  cases. 

The  coroner  should  make  out  a  memorandum  of  his  proceedings.(l) 

The  testimony,  recognizance,  incjuent,  and  memorandum  of  the 
coroner,  must  be  returned  hy  him  to  the  court  of  common  ])leas.'' 

It  may  be  proper  here  to  state,  that  if  the  constable  or  other  per- 
son to  whom  a  warrant  for  a  jury  is  delivered,  as  al)ove  mentioned, 
fails  to  execute  it,  he  forfeits  and  must  p;iy  a  fine  of  fifty  di)llars;  a 
juror  who  fails  to  attend  after  being  summoned,  must  p:iy  a  fine  of 
five  dollars,  to  be  recovered  upon  complaint  by  tiic  coroner,  before  a 
justice  of  the  peace. 

If  the  coroner  neglect,  or  fail  to  perform  any  of  the  above  men- 
tioned duties,  required  of  him  by  the  statute,  he  is  liable  to  indict- 
ment, and  a  fine  not  exceeding  two  thousand  dollars.  These  fines 
go  into  the  county  treasury  for  the  use  of  the  county.*^ 

The  jury  receive,  each,  one  dollar  per  day  fur  their  services,  from 
the  county  treasurer.*^ 

The  witnesses  receive  seventy-five  cents  per  day,  which  is  paid 
out  of  the  county  treasury.^ 

The  justice  receives  the  following  fees:'' 

View  of  the  dead  body,  t/n'ce  dollars. 

For  traveling  each  mile  to  the  place  of  view,  ten  cents. 

Making  out  and  returning  necessary  writings,  ten  cents  for  every 
hundred  words. 

Issuing  venire  to  jury,  Iwenty-Jlcc  cents. 

(b)  Slat.  860,  $9.  (c)  Stat.  8G1.«11.  (s)  M.  390,  $6. 

(d)  Id.  401,  $29.  (h)  Id.  398,  $22. 

(I)  Form  of  memofandum  by  the  coi-oncr,  of  his  proceedings. 

Tlie  State  of  Ohio,  Township, County,  ss. 

Be  it  remembered,  that  on  the day  of ,  in  the  year,  ,  there  then 

being  no  coroner  of  said  count}',   information  was  given   to  me,  G H ,  a 

justice  of  the  pe  tee,  in  and  for  said  township  and  county,   that  tlie  dead  body  of 

A B ,  [or  a  person,]  suj^i^osed  to  liave  come  to  liis  deatli  by  violence,  had 

been  there  lately  found,  at  [here  describe  the  place,']  in  said  township  and  count}'; 
1  issued  a  warrant,  and  delivered  tlie  same  to  I J ,  constable  of  said  town- 
ship, which  was  in  the  words  ;uid  figures  following:  [Jiere  copy  tlie  venire.] 

And  the  said  constable  at  the  place  aforesaid,  where  said  body  was  found,  re- 
turned to  me  said  venire,  indorsed  as  follows:  [fiere  copy  the  return,  and  if  any  sub- 
poenas arc  issued,  so  state,  and  for  ivhom,  and  the  return  of  the  constuhle  ] 

And  also  at  the  time  and  place  aforesaid,  at  which  said  jury  were  sunimoncd  to 
appear,  came  the  said  jurors  mentioned  in  said  return,  to  said  venire  or  warrant, 
who  were  then  and  there,  by  me,  duly  imp:umeled,  and  sworn  in  the  premises, 
proceeded  w  ith  me,  to  inc[iure  into  the  maiuur,  and  by  whom  the  said  person  came 
to  his  death,  &.c.  The  witnesses  were  also  then  and  there  sworn  and  examined, 
their  testimony  reduced  to  writing,  and  signed  by  the  jury  and  myself;  and  there- 
upon said  jury  then  and  there  returned  to  me  their  verdict  in  writing,  which  is  as 
follows:  IJere  insert  the  verdict;  and.  if  the  witnesses  are  recognized,  or  if  proceed- 
ings arc  had  against  the  person  who  caused  the  death,  here  so  state,  and  that  the  depo- 
sitions and  recognizances,  have  been  filed,  in  the  ckrk's  ojjicc,  of  the  court  of  conunon 
pleas,  of  the  county. 

Given  under  my  hand  and  seal,  this dav  of ,  A.  D.  18 — . 

■  G II ,  J.  p.  [Seal] 

and  coroner  for  the  time  being,  of county. 


TITLE  XVI. 


ELECTIONS. 


SECTION  I.       OF  THE  MODE  OF  CONTESTING  ELECTIONS,  AND  FORMS    THERE- 
FOR. 

II.  OF  OPENING  AND  CERTIFYING  THE  RETURNS  OF  AN  ELECTION. 

III.  FORM  OF  OATH  TO  BE  ADMINISTERED  TO  THE  CLERK  AND  JUDGES 

OF  AN  ELECTION. 


Sec  I. THE  MODE  OF  CONTESTING  ELECTIONS,  AND  FORMS  THEREFOR. 

Two  Justices  have  power,  and  are  authorized  and  required  by 
law,  to  take  testimony,  in  relation  to  any  contested  election  of  a 
county  officer,  or  member  of  the  senate,  or  house  of  representatives, 
for  the  county  or  district  in  which  such  justices  reside.* 

The  contestor  must  be  an  elector  of  the  county,  or  district,  from 
which  the  person,  whose  election  is  contested,  is  returned  to  serve.** 
And  he  must  ^ive  notice,  in  writing,  to  the  latter,  or  leave  a  writ- 
ten notice  at  the  house  where  he  last  resided,  within  twenty  days 
after  the  election,  expressing  the  points  on  which  the  election  is 
contested,  and  the  names  of  the  two  justices  of  the  peace  who  will 
officiate  at  the  taking  of  the  depositions,  and  when,  and  where,  they 
will  attend,  to  take  the  same.  The  notice  must  be  served  at  least 
ten  days  before  the  day  pointed  out  therein,  for  the  taking  of  depo- 
sitions. The  time,  however,  for  the  taking  of  the  depositions,  must 
not  exceed  thirty  days  from  the  day  of  election.'(l) 

(a)  Stat.  314,  $56;  Id.  315,  $59.  (b)  Id.  315,  $58.  (c)  Id.  314,  $56. 


(1)  Form  of  notice  for  taking-  depositions,  Sec.  to  contest  an  election: 
To  [herf:  inxcrt  ilic  numt  of  the  person  whose  election  is  contested.']  I  sliall  contest 
the  validity  of  your  election,  to  [here  name  the  office  to  which  tlie  candidate  was  elect- 
ed;] up')ii  tlie  following-  grounds:  1st  {here  state  all  the  points  upon  which  the  elec- 
tion is  contested,  and  then  ptroceed  with  the  notice  as  follows.]  Testimony,  and  depo- 
sitions, will  be  taken  by  me,  relating  to  the  above   matters,  before  G H , 

and  L S ,  two  justices  of  the  peace,  of county,  on  the  —  day  of — , 

in  the  year ,  between  the  hours  of o'clock  A.  M.,  and o'clock  P. 

M.,  at  [tlie  office  of  the  said  G H ,]  in  the  township  of ,  in  said  coun- 
ty; and  if  necessary,  I  shall  continue,  from  day  to  day  thereafter,  between  tiie 
hours  aforesaid,  to  take  said  testimony,  before  said  justices,  at  said  place,  until  the 

—  day  of A.  D.  18 — ,  inclusive.     Dated, ,  &.c. 

['Signed,]  J C ■. 

38 


298  ELECTioN-3.  [Pit.  2,  TUk  1 6, 

The  justices,  or  either  ot"  them,  are  authorized  to  issue  subpoenas 
for  witnesses  wliose  testimony  may  be  recjuired  by  either  of  the 
parties.''(l) 

A  copy  of  the  notice  must  be  delivered  to  the  justice.  The  tes- 
timony must  be  cunfmed  by  them,  to  the  ])oiiits  ot' contest  specified 
in  the  notice.'' 

It  \\\\\  be  proper  for  the  depositions  to  contain  jjjoof,  that  tiie  con- 
testor  is  an  elector  of  the  county,  and  that  he  gave  due  notice  of 
the  contest. 


FORM  OF  DEPOSITIONS,  TAKKN  TO  CONTEST  AN  ELECTION. 

We,  G II ,  and  L S ,  two  justices  of  the  peace, 

in  and  for  the  county  of ,  in  the  State  of  Ohio,  do  hereby  cer- 
tify, that,  pursuant  to  the  notice  hereunto  annexed,  and  at  the  time, 
and  phice,  and  before  us  the  said  justices,  therein  mentioned,  the 
following  named  witnesses  came;  and  being  of  lawful  age,  and  first 
duly  sworn,  to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  in  the  premises,  testified  as  follows: 

X L ,  being  first  duly  sworn,  as  aforesaid,  deposeth  and 

saith  that,  &:c.  [Iiere  set  forth  the  evidence  of  the  witness^ 

Questions  by  the  contestor  J C . 

Question. ? 

Answer. — . 

Questions  by  C C ,  [the  jjerson  whose  election  is  contested.^ 

Question. ? 

Answer. — . 

And  further,  the  deponent  saith  not, 

[Signed^l  X L . 


G —  S — ,  being  also  first  duly  sworn,  as  aforesaid,  &c.  [proceeding 
in  like  ihanner  with  (ill  the  ivitnesses^  and  then  add  the  foUou-ivg.~\ 

We,  the  said  justices,  dO  further  certify,  that  the  above  testimony 

was  reduced  to  writing,  by  us,  [or,  say  by  G H ,  the  justice 

above  mentioned.]  and  that  the  said  several  witnesses,  at  the  said 
time  and  place  of  taking  said  testimony,  subscribed  their  names  to 
their  respective  depositions. 

In  testimony  whereof,  we  have  hereunto  set  our  hands  and  seals, 

this day  of ,  in  the  year . 

G H .     {Seal) 

L S .     {Seal) 

The  justices  should  seal  up  the  depositions,  notice,  and  docu- 
ments, and  address  them  to  the  speaker  of  the  senate,  if  the  contest 
is  in  relation  to  a  senator;  or  to  the  speaker  of  the  house  of  repre- 

(a)  Stat.  315,  $57.  (h)  Id.  ib.  §58. 

(1)  The  subpoena  requires  the  witness,   "to  give  testimon}',  and  the  truth  to 

speak,  in  relation  to  tlie  validity  of  tlie  election  of  C C ,  to  the  office  of 

— — ,"  &c.     See  the  form  of  a  common  subpoena,  pages  53,  54. 


§1,2,  3.]  ELECTIONS.  299 

sentatives,  if  the  contest  is  in  relation  to  that  body;  or  to  the  court 
of  common  pleas,  on  or  before  the  second  day  of  their  then  next 
term,  if  the  contest  is  in  relation  to  the  office  of  sheriff,  coroner, 
county  auditoi',  county  recorder,  county  treasurer,  county  commis- 
sioner, county  assessor,  or  prosecuting  attorney.* 

On    the    envelope,    write  the  following  certificate:  ^'Sealed  up, 
and  addressed,  and  transmitted  by  us.     Nov.  — ,  18 — . 

[Signed^']         G H , 

L S , 

Justices  within  named." 

The  papers  may  be  transmitted  by  the  contestor. 


Sec   JI. OF    THE    OPEXINQ    AND     CERTIFYING     THE     RETURNS     OV     ATf 

ELECTION. 


On  the  sixth  day,  after  a  general  election  for  membere  of  the 
general  assembly,  &:c.,  or  sooner,  if  all  the  returns  are  made,  the 
clerk  of  the  court  of  common  pleas,  of  the  county,  ta.king  to  iiis  as- 
sistance two  justices  of  the  peace  of  the  same  county,  opens  the  sev- 
eral returns  of  the  election,  which  have  been  made  to  his  office,  and 
makes  abstracts  thereof  in  the  following  manner:  The  abstract 
of  votes  for  governor,  must  be  on  one  sheet;  and  being  certified  and 
signed  by  the  justices  and  clerk,  must  be  deposited  in  the  clerk's 
office.  The  abstracts  of  votes  for  governor,  representatives  to  the 
general  assembly,  sheriffs,  recorders,  coroners,  prosecuting  attor- 
neys, commissioners,  and  assessors,  must  be  also  made  out,  on  one 
sheet,  and  in  like  manner  certified,  and  signed,  by  the  justices  and 
clerk,''  therein  stating  who  has  the  highest  number  of  votes,  and  is 
'elected,  for  the  county  offices.*^ 

In  making  the  abstract  of  votes,  the  justices  and  clerk  have  no 
power  to  decide  on  the  validity  of  the  returns,  but  must  be  governed 
by  the  number  of  votes  stated  in  the  poll  books;  no  paper,  however, 
can  be  received  as  a  poll  book,  unless  delivered  at  the  clerk's  office 
by  one  of  the  judges  of  the  election  held  in  such  township.*^ 


Sec.  III.  —  FORM  OF  oath  to  bf:  administered  to  the  judges  avt> 

CLERKS  OF  ELECTIONS.® 

You  do  solemnly  swear,  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  that  you  will  faithfully  perform  the  duties  of 
■a.  judge  [or  clerk,  as  the  case  may  /;e,]  of  this  election,  according  to 
law,  and  the  best  of  your  abilities;  and  that  you  will  studiously  en- 
deavor to  prevent  fraud,  deceit,  or  abuse,  in  conducting  the  same; 
as  you  shall  answ'er  to  God. 

(n)  Stat.  314,  315,  5,54.  59.  (d)  Stnt.  310,  $37^ 

fb)  Id.  310, 5i36,  37.  («)  Id.  .306,«20. 

(f.)  Id.  314,  $53. 


TITLE  XVII. 


FORCIBLE  ENTRY  AND  DETAINER. 

I.  WHKN,    IN    WHAT    CASES,    AND    WHERE,    AN    ACTION    FOR    FORCI- 

BLE   ENTRY    AND    DETAINER,    MAY    RE    BROUOHT, 

II.  WHEN    NOTICE    TO    Q,UIT    IS    NECESSARY,    AND    HOW    GIVEN. 

III.  OF    THE    WRITTEN    COMPLAINT    OF    THE    PLAINTIFF. 

IV.  OF    THE    ISSUING,    SERVICE,    AND    RETURN,    OF    THE    PROCESS. 

V.  WHAT    PROCEEDINGS    ARE    HAD,    AFTER    THE    PROCESS    IS    ISSUED, 

AND    REFORE    THE   TRIAL. 

VI.  OF     THE     EVIDENCE     AND     PROCEEDINGS,      ON     THE      TRIAL;      AND 

HEREIN, 

(A)  When  the  suit  is  affrrinst  a  tenant^  for  /lohlrng  over  his  term. 

(B)  When  the  plain  I  iff  cldims  (is  purch  aser  under  an  execution. 

(C)  When  t)ie  defendant  is  a  settler.^  or  occupier.^  without  any 

color  of  title. 

VII.  OF    THE    VERDICT    OF    THE    JURY. 

Vm.  OF    THE    JUDGMENT    AND    EXECUTION    THEREON. 

IX.  OF    APPEAL    AND    CERTIORARI. 

X.  forms;  and  herein, 

(A)  Notice  to  leave  the  premises. 

(B)  Complaint.,  for  forcible  entry  and  detainer. 

(C)  Co7nplaint.,  by  a  purchaser  on  execution. 
{D)  Co?nplaint.,by  a  landlord  against  his  tenant. 

(E)  Bond  for  costs.^  when  the  plaintiff  is  a  non-resident  of  the 

county. 

(F)  Warrantor  venii-e.^  for  a  jury. 

(G)  Sut)ifno7is  to  the  defendant. 

(H)   Oath  and  affirmation  of  the  jury. 

(  /)  Verdicts.  —  No.  1 .  When  the  action  is  for  forcible  entry  and 
detainer,  and  the  jury  find  the  coj/iplaint  true. — No.  2.  When 
the  action  is  for  forcible  entry  and  detainer.,  and  the  jury 
find  the  defendant  guilty  of  detainer.,  only. — No.  3.  When 
the  action  is  for  forcible  detainer  only.,  and  no  notice  to  quit 
has  been  gii^en. — No.  4.  When  the  jury  confine  the  verdict 
to  a  part  of  the  premises. — No.  5.  When  the  verdict  is  for 
the  defendant. 

(K)  Jud(;ments.- — No.  1.  When  the  jui-y  have  found  the  ivhole 
complaint  true. — No.  2.  When  the  jury  have  found  the  de- 
fendant guilty  of  detainer  only.,  and  that  notice  to  leave.,  was 
not  given. 

(L)   Writ  of  restitution, 

[M)  Docket  entries. 


[Prt.  2,  Title  17.]  forcible  entry  and  detainer.  301 


Sec.    I. WHEN,    IN    WHAT    CASES,    AND    WHERE,   AN  ACTION  FOR  FOR- 
CIBLE   ENTRY    AND    DETAINER    MAY    BE     BROUGHT. 

This  is  a  summary  proceeding,  to  obtain  possession  of  lands,  or 
tenements.  It  is  regulated  by  statute,(l)  and  can  be  had  in  the  fol- 
lowing cases:* 

1 .  Against  tenants  holding  over  their  term. 

2.  By  the  purchaser  of  real  estate  on  execution,  after  the  sale 
has  been  examined  and  adjudged  legal  by  the  proper  court;  the 
judgment  debtor  being  in  possession,  at  the  time  of  the  rendition  of 
the  judgment. 

3.  Against  a  person  who,  without  any  color  of  title,  occupies 
lands  or  tenements  to  which  the  claimant  has  the  right  of  posses- 
sion. 

4.  Where  the  entry  or  the  detainer  is  unlawful,  forcible,  and  by 
sti'ong  hand.*" 

If  two  years  have  expired  from  the  time  the  claimant  had  a  right 
to  bring  his  action,  he  must  proceed  by  ejectment  in  the  court  of 
common  pleas.  After  that  time,  he  can  neitiier  bring  an  action  for 
forcible  entry  and  detainer,  nor  for  detainer  only.*  If,  however,  a 
tenant  continue  upon  the  land,  after  the  expiration  of  his  lease,  by 
the  assent  or  agreement  of  his  landlord,  he  is  still  considered  as  a 
tenant,  so  long  as  the  verbal  lease  continues.  In  such  case,  the  ac- 
tion for  forcible  entry  and  detainer  should  be  brought  within  two 
years  from  the  time  the  tenant  commenced  holding  over  without  the 
agreement  or  assent  of  the  landlord. 

When  the  complainant  is  a  purchaser  on  execution,  the  suit 
against  the  former  owner  should  be  commenced  within  two  years 
after  the  execution  of  the  deed  by  the  sheritf. 

The  statute  does  not  require  the  proceedings  to  be  had  in  any 
particular  township;  but  any  two  justices  of  the  county  where  the 
premises  are  situate,  may  try  the  cause,  in  any  township  within  the 
county.^ 


Sec    II. WHEN    NOTICE    TO    QUIT    IS    NECESSARY,    AND     HOW     GIVEN. 

When  both  the  entry  upon  the  premises  and  the  detainer  of  them 
are  forcible  and  unlawful,  no  previous  notice  to  the  defendant  is 
necessary,  before  an  action  is  brought.  But  if  the  entry  of  the  de- 
fendant upon  the  premises  is  lawful,  and  he  afterwards  unlawfully 
detain  thcin,  the  plaintiff  should  notify  the  defendant,  at  least  ten 
days  before  the  issuing  of  the  writ,  to  leave  the  premises. *(2) 

A  written  copy  of  the  notice  must  be  left  with  the  defendant,  or 
at  his  usual  place  of  abode,  if  he  cannot  be  found.^     As  it  will  be 

(a)  Stat.  421,  519.  (b)  8  Ohio  Rep.  398.  (c.)  Staf.  417,  $1. 

(d)  2  Ohio  Rep.  255.  (e)  Stat.  418,  53.  (p)  Id.  218,  $3. 


(1)  The  Statute  will  be  found  in  Stat.  417. 

(2)  Fortlie  form  of  the  notice,  see  §10,  (A),  of  this  Title. 


302  FORCIBLE    ENTRY    AND    DtTAINKR,     [Pri.  2,    2V//e   17, 

afterwards  necessary  to  prove  the  service  of  the  notice,  some  disin- 
terested person  should  serve  a  copy,  and  retain  tlie  original. 


Sec.    III. OF    THE    WRITTEN    COMPLAINT    OF    THE    PLALNTIFF, 

The  next  step  for  the  plaintilf  to  take,  after  giving  the  notice, 
(whether  the  proceeding  is  founded  upon  forcible  entry  and  detain- 
er, or  detainer  only,)  is,  to  make  out  his  couiplaint  in  writing,  and 
leave  it  with  two  justices  of  the  peace  of  the  county. *(1) 

The  complaint  must  contain  a  pnrticular  description  of  the  pre- 
mises claimed,  and  should  state  that  they  are  situated  within  the 
county.'' 


Sec  IV.— 


OF    THE    ISSUING,    SERVICE,  AND  RETURN    OF    THE  PROCESS. 


No  process  can  be  issued,  until  the  written  complaint  of  the  plain- 
tiff has  been  left  with  two  justices. 

If  the  plaintiff  do  not  reside  in  the  county,  the  justices,  or  one  of 
them,  must,  l)efore  they  issue  process  on  the  complaint,  take  a  bond 
from  him,  with  sutTicient  security,  in  the  sum  of  one  hundred  dollars, 
conditioned  for  the  payment  of  the  costs. (2) 

The  bond  must  be  filed  with  one  of  the  justices,  for  the  benefit  of 
those  interested.*^ 

The  complaint  being  received,  and  the  bond  (if  any  is  required) 
being  filed,  the  two  justices  must  issue  their  warrant  or  venire,  un- 
der their  hands  and  seals. (3)  directed  to  the  sheriff,  or  in  case  of  his 
absence  or  legal  disqualification,  to  the  coroner  of  the  same  county, 
commanding  him  to  cause  to  come  before  them,  six  judicious  disin- 
terested men  of  the  county,  who  are  freeholders  therein. *^ 

At  the  time  the  warrant  is  issued,  the  justices  must  also  issue  a 
summons  to  the  party  complained  against,  stating  therein,  the  cause 
lof  complaint,  and  the  time  and  place  of  trial. ''(4) 

The  summons  must  be  served  upon  the  party,  or  a  copy  left  at 
his  usual  place  of  abode,  at  least  seven  days  before  the  day  appoint- 
ed by  the  justices  for  the  trial.s 


Sec.  Y.  —  WH.vT  proceedings  are  had,  after  the  process  is  is- 
sued,   AND    BEFORE    THE    TRIAL. 

Previous  to  the  trial,  and  on  or  before  the  day  appointed  therefor, 
the  warrant  and  summons  should  be  returned.     If  the  return  to 

(a)  Stat.  417,  $2.  (h")  2  Ohio  Rep.  256.  (c)  Stat.  420,  $16. 

(e)  Id.  418,  $5.  (g)Id.  ib. 

(1)  For  the  form  of  the  complaint,  see  §10,  (B),   (C),  (D),  of  this  Title. 

(2)  For  the  form  of  the  bond,  see  UO,  (E ',  of  tliis  Title. 

(3)  For  t]ie  form  ofthe  warrant  or  venire,  see  §10,  (F),  of  this  Title.  _; 

(4)  For  the  form  of  tlie  summons,  see  §10,  (G),  of  this  Title. 


§3,4,5,e,(A).]       FORCIBLE    ENTR?    AND    DETAINER,  303 

the  summons  shows,  that  it  was  not  served  upon  the  defendant  seven 
days  before  the  day  of  trial,  and  the  defendant  fails  to  appear,  or 
appearing,  makes  this  objection  before  the  jury  are  sworn;  in  either 
event,  judgment  of  non-suit  must  be  entered  against  the  plaintiff.(l) 
But  if,  in  such  case,  the  defendant  appears,  and  the  jury  are  sworn, 
he  cannot  afterwards  take  advantnge  of  this  error.  By  appearing, 
and  permitting  the  trial  to  commence,  without  objection,  he  waves 
the  objection.  When  the  writ  is  not  served  seven  days  before  the 
trial,  owing  to  the  negligence  of  the  officer,  he  renders  himself  lia- 
ble to  the  plaintiff,  who  can  recover  by  suit  the  damages  he  has  sus- 
tained. 

If  the  defendant  has  been  duly  served  with  the  summons,  and 
does  not  appear  on  the  day  of  trial,  the  justices  must  proceed  in  the 
cause,  in  the  same  manner  as  if  he  were  present.^ 

If  the  plaintirt'or  his  agent  does  not  attend,  judgment  of  non-suit 
should  be  entered  against  him. (2) 

If  one  or  both  of  the  justices  fail  to  attend,  it  will  operate  as  a 
discontinuance  of  the  suit;  and  all  subsequent  proceedings  will  be 
irregular  and  erroneous. (3) 

If  by  accident,  or  challenge  for  cause, (4)  there  should  not  be  a 
full  jury;  the  sheriff,  or  if  he  be  absent  or  disqualified,  the  coroner, 
must  fill  the  panel  vvith  talesmen.''  No  challenge,  except  for  cause, 
should  be  allowed.  An  oath  or  affirmation  must  be  administered  to 
the  jury,  by  one  of  the  justices." 

The  justices  may  continue  the  suit,  from  time  to  time,  upon  good 
cause  shown;  but  not  more  than  thirty  days,  without  the  consent  of 
both  parties.*^ 


Sec.  VI,  —  OF  the  evidence  and  proceedings,  on  the  trial. 

(A)   When  the  suit  is  against  a  tenant  for  holding  over  his  term. 

The  plaintiff,  in  order  to  recover  costs,  must  prove  that  he  gave 
the  defendant  the  requisite  notice  to  leave  the  premises. (5) 

(a)  Slat.  418,  $5,  (b)  Id.  419,  $8.  (c)  Id.  418,55.  (d)  Id.  422,  §22. 

(1)  For  tlie  form  and  effect  of  such  judg-ments,  see  p.  102,  103. 

(2)  For  the  form  of  such  a  judgmjnt,  see  p.  103. 

(3)  See  p.  4G. 

(4)  As  to  what  are  sufficient  challeng-es  for  cause,  see  Stat.  492,    §14. 

(5)  The  statute  requires  tiie  plaintiff',  on  complaint  of  detainer  onl\',  to  .q'ive  the 
defendant  notice,  ten  days  prior  to  the  conmiencement  of  the  suit,  to  leave  tlie 
prem  ses.  Stat.  418,  §3.  It  furllier  provides,  that  where  the  complaint  is  for 
forcihie  entry  and  detainer,  and  tlie  jury  find  tlie  defendant  guilty  i)f  the  detainer 
only,  and  that  the  plaintiff  did  not  give  tlie  requisite  notice  above  mentioned,  he 
sliall  not  recover  costs,  but  sliall  be  entitled  to  judgment  of  restitution  merely. 
Id.  418,  §4. 

Suppose  Ihe  plaintiff  complains  of,  and  proves  an  nnhiuful  detainer  only,  but 
has  neglected  to  give  the  notice;  what  shall  the  jury  and  justices  do'  It  is  be- 
lieved tliat  in  sucli  case,  the  plaintilF'is  entith-d  to  a  verdict,  and  judgment  of  res- 
titution; but  that  he  cannot  recover  costs.  If  tiiis  be  not  a  correct  construction  of 
the  statute,  then  it  follows,  that  one  who  falsely  charges  a  defendant  with  forcible 


304  FORCIBLB   ENTRY    AND   DETAINER.       [Prt.%  Title  11^ 

If  the  plaintilT  produces  the  lease,  and  proves  its  execution,(l) 
and  it  ap[)ear  therefrom  tiiat  the  lease  expired  hefore  suit  brought, 
the  plaintitfis  entitled  to  a  verdict;  unless  it  aj)pear,  from  the  proofs 
of  the  defendant,  or  otherwise,  that  the  term  of  the  lease  was  ex- 
tended by  agreement,  and  had  not  expired  at  the  time  when  the  ac- 
tion was  brought. 

If  there  was  a  written  lease,  neither  party  can  be  permitted,  if 
the  other  object,  to  give  evidence  by  witnesses,  of  its  contents;  un- 
less a  foundation  is  laid  for  such  verbal  evidence,  in  the  manner 
heretofore  stated.(2) 

If  the  plaintiff  proves  that  the  defendant  went  into  possession  of 
the  premises  as  his  tenant,  it  will  be  no  defence,  nor  ought  the  de- 
fendant to  be  permitted  to  prove,  that  the  plaintilf  had  no  title.  If 
the  defendant  has  procured  a  good  title  from  a  stranger,  he  cannot 
set  it  up  against  his  landlord.  A  tenant  is  not  permitted  to  dispute 
the  title  under  wiiicii  he  himself  is  in  possession;  though  he  may 
show,  that  he  did  not  enter  under,  or  that  he  is  not  in  fact  the  tenant 
of  the  plaiutitV;  or  tiiat  his  landlord's  title  expired,  after  the  making 
of  the  lease.* 

If  the  lease  was  not  in  writing,  but  a  mere  verbal  contract,  it  is 
binding  on  both  parties,  provided  the  tenant  took  possession  under 
it  precisely  as  if  it  was  executed  according  to  the  prescribed  rules 
of  the  statute. *" 


{B)  Of  the  proceedings  on  trials  wlien  the  plaintiff  claims  as  pur- 
cJiascr  under  an  c?ceciition. 

The  plaintiff  must  produce  the  deed  of  the  sheriff  to  him,  or  a 
copy  of  it,  duly  certified  from  the  recorder's  office,  of  the  county. 
If  a  certified  copy  is  produced,  the  execution  of  the  original  need 
not  be  proved."^  The  deed,  or  the  copy,  must  appear  to  have  been 
attested  by  two  witnesses,  and  duly  acknowledged  like  other  deeds, 
or  it  will  be  void.^ 

If  an  original  deed  is  produced  on  the  trial,  its  execution  must  be 
proved  in  the  manner  heretofore  stated. (3) 

The  deed  of  the  sheriff' is  prima  facie  evidence  of  the  legality  of 
the  sale,  and  the  proceedings  therein.®  If  the  sale  was  made  with- 
out levy,  or  without  an  execution  or  a  judgment,  or  if  the  execution 
upon  which  the  levy  or  the  sale  was  made  was  without  a  seal,  the 
deed  of  the  sheritfis  void.^ 

In  genei'al,  the  deed  of  the  sheriff"  vests  in  the  purchaser  as  good 

(a)  3  Ohio  Rep.  59.  295.  (d)  1  Oliio  Rep.  279.  315. 

(b)  1  id.  252;  3  id.  295.  (e^  Stat.  475,  §16. 

(c)  Stat.  267,  $10.  (g)  12  Johns.  Rep.  213;  6  Ohio  Rep.  12. 

entry,  shall  thereby  place  himself  in  a  better  situation,  than  if  he  honestly  and  truly 
charged  the  defendant,  with  detainer  only.  This  could  not  have  been  the  inten- 
tion of  the  legislature. 

(1)  As  to  the  mode  ill  which  the  lease  .should  be  proved,  see  p.  883  84. 

(2)  See  pag-e  78. 

(3)  See  pages  83,  84. 


§6,  (B).]  FORCrBLE    ENTRY    AND    DETAINER.  305 

and  perfect  an  estate,  as  the  defendant  to  the  judgment  had,  on  the 
first  day  of  the  term  at  which  the  judgment  was  rendered.*  No 
deed,  therefore,  or  other  conveyance,  made  by  the  del'endant  after 
that  time,  can  affect  the  title  of  the  plaintiff!  Nor  can  the  defend- 
ant set  up,  as  a  defence  to  the  action  of  forcible  detainer,  that  he  had 
no  title  to  the  premises  at  the  time  the  judgment  was  rendered,  nor 
be  permitted  to  show  that  some  other  person  is  the  ti'ue  owner.*' 
The  purchaser  under  the  execution  has  a  right  to  hold  the  possesso- 
ry title  of  the  defendant,  however  defective  or  limited  it  may  be.''(l) 
The  plaintiff',  in  order  to  recover,  must  show,  that  the  defendant 
was  in  possession  of  the  premises  at  the  time  the  judgment  was  ren- 
dered."^ 

(a)  Stat.  468,  52,  and  475,  ^16.  (c)  2  Ohio  Rep.  224;  Wright's  Rep.  117. 

(b)  3  Caine's  Rep.  188.  (d;  Stat.  421,  §19. 

fl)  The  rule  laid  down  in  the  text,  denies  to  the  defendant,  the  rigiit  to  show- 
that  lie  had  no  title  at  the  time  the  judgment  was  rendered  against  him.  This  ride 
seems  to  be  well  settled.  But  it  is  a  d.tf'crent  question,  whetlier  he  may  show,  that 
after  the  rendition  of  the  judgment,  or  levy,  and  after  tlie  action  of  forcible  de- 
tainer, lie  held,  and  still  continues  to  hold,  possession,  by  a  title  foreign  to,  and  un- 
connected with  the  title  which  he  held  at  tlietime  of  the  levy  or  rendition  of  the 
judgment.  Upon  this  question,  I  find  no  authorities.  II  the  judgment  debtor, 
when  tlie  judgment  was  rendered,  or  at  the  time  of  the  levy,  held  possession  by 
such  defective  title  tiiat  he  coidd  claim  from  the  true  ownei-  pay  for  his  improve- 
ments, upon  being  turned  out;  he  could  not,  by  afterwards  procuring  a  conveyance 
from  the  ti-ue  owner,  thereby  prevent  the  plaintiff  from  recovei-ing  in  this  action. 
In  such  case,  the  purchaser  at  slier. fl's  sale,  obtained  a  vested  right  to  the  improve- 
ments, and  should  iiave  possession  from,  the  defendant,  so  as  te  be  able  to  claim 
remuneration  for  iheiTi,  from  the  true  owner.  A  person  who  has  a  defective,  but 
adverse  title,  may  claim  [)ay  for  his  improvements  of  the  true  owner,  il  in  posses- 
sion witiiout  fraud,  {first,)  under  a  connected  title  derived  from  the  records  of 
some  public  office;  or  {second,)  if  he  hold  possession  by  deed,  devise,  descent, 
contract,  bond,  or  agreement,  from  and  under  any  person  claiming  title  as  afore- 
said, derived  from  the  records  of  a  public  office;  or  {ihird,)  if  he  hold  possession 
by  sale,  under  an  execution,  i~suecl  against  a  person  who  either  claimed  title  as 
aforesaid,  derived  from  tlie  records  of  some  public  office,  or  by  dee<l,  (lul\  authen- 
ticated and  recorded;  or  {four/h,)  if  he  hold  possession  under  a  sale  for  taxes;  or 
(fiffh,)  under  a  sale  and  convejance  by  executors,  administrators,  or  guardians; 
or  {sixlli,)  under  a  sale  and  conveyance  b)  any  other  person  or  persons,  in  pursu- 
ance of  any  order  of  court,  or  decree  in  chancer}'.     iStut.  60.5. 

Where  the  defendant  is  in  possession,  by  title  under  which  he  could  not  claim 
compensation  from  the  true  ownei',  for  improvements;  and  that  title  expired  after 
the  rendition  of  the  judgment,  by  its  own  limitation,  without  the  connivance  or 
fraud  of  any  one,  and  the  defendant  holds  afterwards,  under  a  new  and  distinct  title 
from  the  one  which  has  exjiired;  I  see  no  reason  wiiy  he  ma\  not  show  tiie  fact, 
as  a  complete  defence  to  an  action  for  forcible  detainer.  As,  for  instance: — Judg- 
ment is  had  against  A,  who  at  the  time,  is  in  possession  of  land,  under  a  lease  for 
one  year;  the  land  is  sold  to  U,  on  tiie  jiidi^nicnt;  and  afterwanls,  and  before  an  ac- 
tion of  forcible  detainer  is  brought  by  H,  the  lease  expires.  A,  then  obtains  a 
lease  for  another  year,  and  whilst  the  last  lease  is  running,  H,  as  purchaser  under 
tiie  judgment,  brings  his  action  of  forcible  detainer  against  A.  In  such  case,  A, 
by  showing  these  facts,  may,  it  is  believed,  defeat  the  action. 


39 


306  FORCIBLE    ENTRY    AND    DETAINER.     [P?'/.   2,  Title  17, 


(C)  Of  the  procccd'mf^s  nn  the  trial  when  the  defendant  is  a  settler, 
or  occupier^  wiUioul  any  culur  of  title. 

If  the  ])laintiir  prove  that  he  held  j)ossession  ol"  tlie  premises  by 
exercising  acts  of  ownership  over  it  at  the  time,  or  before  the  de- 
fendant took  possession,  and  the  defendant  shows  no  color  of  right 
or  title  to  the  })osscssion,  the  plaintifl^  will  he  entitled  to  a  verdict, 
without  any  further  proof  of  ownership  af  the  premises.^  But,  if 
the  phiintitf  was  not  in  possession,  or  was  not  exercising  acts  of 
ownership  over  the  premises,  as  above  mentioned,  then  he  must,  in 
order  to  recover,  show  a  complete  connected  title,  by  deeds;  the 
patent  froni  the  United  States,  or  an  authenticated  copy  from  the 
land  office,  or  from  the  records  of  the  county,  together  witli  the 
deeds,  or  authenticated  copies  thereof,  from  the  patentee  down  to 
the  plaintiff,  must  be  produced.  If  an  original  deed,  instead  of  an 
authenticated  copy  from  the  recorder's  office,  is  produced,  it  must 
be  proved  in  the  manner  heretofore  stated.(l) 

A  patent  proves  itself  The  deeds,  or  the  copies  of  the  deeds, 
must  show,  upon  their  face,  that  they  were  duly  executed  and  ac- 
knowledged; otherwise,  no  legal  estate  will  pass  by  them,  and  con- 
sequently, they  wiir  not  be  evidence  of  title.  If  the  defendant 
claims  possession  under  a  third  person,  the  declarations  of  that  third 
person,  or  of  any  other  person  through  whom  the  defendant  claims, 
made  while  such  third  person  owned  the  land,  may  be  received  in 
evidence  against  the  defendant.^ 


Sec.  VII. — OF  the  verdict  of  the  jury. 


If  the  complaint  is  for  both  forcible  entry  and  detainer,  and  the 
jury  find  the  cotiiplaint  true,  they  render  a  general  verdict  of  guilty. 

If  the  complaint  is  for  both  forcihlc  entry  and  detainer,  and  the 
jury  find  the  defendant  guilty  of  detainer  only,  they  render  a  spe- 
cial verdict;  therein  stating,  whether  the  requisite  notice  was  given 
to  the  defendant,  to  leave  the  premises. '^(S) 

If  the  complaint  is  for  detainer  only,  and  the  jury  are  satisfied 
that  the  notice  above  mentioned  was  given,  and  that  the  complaint 
is  true,  they  render  a  general  verdict  of  guilty.  But,  if  they  find 
the  complaint  true,  and  that  the  notice  was  not  given,  they  render 
a  special  verdict,  therein  stating  that  the  requisite  notice  was  not 
given. 

The  jury  render  a  general  verdict  of  not  guilty,  if  they  find  the 
complaint  of  the  plaintiif  untrue. 

(a)  3  Ohio  Rep.  388.  (c)  Stat.  41 8,  54  and^te. 

(1))  27  Eng.  C.  L.  Rep.  446;  4  Taunt.  Rep.  ]8. 

(1)  See  pages  83,  84. 

(2)  See  page  301,  as  to  the  requisites,  and  service  of  the  notice,  and  §10,  (I),  of 
this  Title,  for  the  forms  of  verdicts. 


§7,  8,  9,  10,  (A).]         FORCIBLE  ENTRY  AND  DETAINER.  307 

The  iuiy  may,  in  all  cases  where  they  find  a  v^erdict  for  the  plain- 
tiff, state  therein,  the  particular  part  of  the  premises  mentioned  in 
the  complaint  of  the  plaintift',  to  which  they  intend  to  apply  their 
verdict;  and  this  they  should_pf  course  do,  where  the  evidence  shows 
that  the  defendant  detains  a  part,  only,  of  the  premises  described  in 
the  complaint. 


Sec.  VIII.  —  of  the  judgment  of  the  justices,  and  execution 

THEREON. 

♦. 

When  the  verdict  of  the  jury  is  a  general  one,  of  guilty,  the  jus- 
tices render  judgment  of  restitution,  and  costs,  in  favor  of  the  plain- 
tiff; whether  the  complaint  be  for  forcible  entry  and  detainer,  or  de- 
tainer only.  _;' 

When  the  jury  find  a  special  verdict,  as  above  directed,  (that  the 
requisite  notice  was  not  given,  but  that  the  defendant  is  guilty  of 
detaining  the  premises,)  the  justices  render  judgment  for  restitution 
in  favor  of  the  plaintiff,  but  omit  judgment  for  costs.  In  such  case, 
each  party  must  pay  the  costs  by  him  made.(l) 

No  writ  of  restitution  can  issue,  to  carry  the  judgment  into  effect, 
until  after  the  expiration  of  ten  days  from  the  time  of  entering  up 
the  judgment.^  When  judgment  is  rendered  for  costs,  the  writ  of 
restitution  contains  a  command  to  the  officer  to  make  the  costs. (2) 


Sec.  IX.  —  OF  APPEAL,  and  certiorari. 

No  appeal  is  allowed,  in  cases  of  this  kind,  from  the  judgment  of 
the  justices;  and  no  certiorari  can  be  allowed,  after  the  expiration 
of  ten  days  from  the  rendition  of  the  judgment. 

If  a  certiorari  is  ollowed,  the  justices  can  proceed  no  further  on 
the  judgment;  as  the  court  of  common  pleas  thereafter  retain  and 
dispose  of  the  action.'' 

Sec.  X.  —  FORMS. 

(A)  Notice  to  leave  tlie  premises. 

To  C D . 

Sir;  —  I  wish  you  to  leave  the  following  premises,  now  in  your 
occupation,  to  wit:  \Jiere  describe  the  premises^  in  tlie  same  manver  as 
is  directed  in  the  form  of  the  complaint  below;  and  then  add{\  Your 
compliance  with  this  notice,  within  ten  days  after  its  service,  will 
prevent  any  legal  measures  being  taken  by  me,  to  obtain  possession. 
I  am,  respectfully, 

Dated, ,  A.  D.  1 8—.  A B . 


(Q)  Stat.  418,  $6.  (1))  Stat.  419, 420. 

(1)  See  note  5,  p.ifre  30.3;  and  Stat.  418,  §4. 

(2)  For  the  lorm  of  the  writ  of  rcstitiUMHtf^c^  §^0,  (L),  of  this  Title. 


tuiiflilMSC 


308  FORCIBLE  ENTRY  AND  DETAINER.    \_Prt.2,  Titk  \7^ 


(J5)  Form  of  the.  complaint^  for  forcible  entry  and  detainer. 

To  G H ,  a  justice  of  the  peace,  in  and  for  the  township 

of ,  in  the  county  of ,  and  to  11 S ,  a  justice  of 

the  peace,  in  and  for  the  township  of- ,  in  the  same  county: 

The  undersigned,  A B ,  a  resident  of  the  county  of , 

Ohio,  doth  hereby  make  his  complaint  to  you,  against  one  C 

D ,  for  this:  That  the  said  C D ,  *  did,  on  or  about 

the diiy  of ,  in  the  year ,  unlawfully,  and  forcibly, 

and  with  a  strong  hand,  enter,  and  hath  ever  since,  nnd  doth  still 
unlawfully,  and  forcibly,  and  with  a  strong  hand,  detain,  from  the 
possession  of  the  undersigned,  the  following  premises,  situate  in  the 
township  of .  in  the  county  of  ,  and  described  as  follows: 

\Here  describe  t!ie  ])rei7iises^  with  such  certainty^  as  icill  apprise  the 
defendant  of  ivhat  is  deinanded.,  and  will  afford  a  guide  to  the  sheriffs  in 
executing  the  writ  of  restitution.  The  following  description  would  be 
sufficient:  ''About  three  acres  of  land,  with  a  cabin  thereon,  bound- 
ed on  the  north  by  lands,  now,  or  lately  occupied  by  J G ; 

on  the  east,  b}^  the  highway;  on  the  south,  by  land  now,  or  lately 

occupied  by  W iS ;  and  on  the  west,  by  land  now  occupied 

by  the  undersigned."' 

So^  a  description  of  tliefol  hiring  kind^  wojild  be  sufficient:  "About 

ten  acres  of  land,  now  in  the  possession  of  the  said  C D , 

being  the  two  fields,  under  fence,  situate  in  the  northeast  corner, 
and  part  and  parcel  of  the  homestead  farm  of  the  undersigned;  and 
which  homestead  farm  is  situated  in  range  twenty-two,  township 
five,  section  five,  refugee  lands,  and  bounded  and  described  as  fol- 
lows: (Jiei'e  copy  the  boundaries,  from  the  deed  of  the  farm) 

After  giving  a  particular  description  of  tlte  premises.,  add  the  follow- 
ing, if  the  complaint  is  for  an  entry  or  detainer  with  force  and  strong 
hani:'\  The  undersigned,  at  the  time  of  said  entry,  and  ever  since, 
hath  had  the  right  to  the  possession  of  said  premises,  j  and  the  un- 
dersigned therefore  asks  process  and  restitution. 

Dated  this day  of ,  A.  D.  1 8 — . 

[Signed^  A B . 

If  the  complaint  is  against  a  settler  icithout  color  of  title.,  make  out 
the  complaint  exactly  as  in  the  preceding  form.,  with  this  addition :  at 
the  t  in  the  preceding,  add  the  following:  the  said  C D be- 
ing a  settler  as  aforesaid,  on  said  premises,  without  any  color  of 
title. 


(C)  Form  of  complaint.^  by  purchaser  on  execution.,  for  a  forcible 
detainer. 

Commence  and  proceed,  as  in  the  preceding  form.,  (jB),  to  the  *,  and 

from  that  point  proceed  as  follows:  hath,  ever  since  the day  of 

,  in  the  year ,  {ffill  up  the  blanks  with  a  day  and  year  sub- 


§10,(B),(C),(D),(E).]  FORCIBLE  ENTRY  AND  DETAINER.  309 

sequent  to  the  execution  of  the  deed  by  the  sherijf\]  and  still  doth  un- 
lawfully and  forcibly  detain,  from  the  possession  of  the  undersigned, 

the  following  premises,  situate  in  the  township  of ,  in  the  said 

county  of ,  and  described  as  follows:  [^/i  ere  describe  the  premises 

by  jnetes  and  bounds^  J'rom  the  deed  of  the  sherijf'.'\ 

And  which  said  premises  were,  by  virtue  of  an  execution  issued 

upon  a  judgment  rendered  against  the  said  C D ,  in  favor 

of ,  at  the term  of  the  court  of  common  pleas,  \or^  supreme 

court,  as  the  case  may  6e,]  in  and  for  said  county  of ,  [///e  deed  of 

the  sheriff  icill  show  the/acts^  by  which  the  above  blanks  can  beJiUed^l 
duly  sold  to  the  undersigned,  the  sale  by  said  court  adjudged  legal; 
and  thereupon  a  deed  duly  executed  to  the  undersigned,  by  the  sher- 

ifi'  of  said  county,  on  the day  of ,  in  the  year .     At 

the  time  of  the  rendition  of  said  judgment,  the  said  C D 

was  in  possession  of  said  premises.     On  the day  of ,  in  the 

year ,  the  undersigned  duly  served  upon  the  said  C D , 

as  required  by  law,  notice  in  writing,  to  leave  said  premises.  The 
undersigned  asks  process  and  restitution. 

Dated  this day  of -,  A.  D,  1 8 — . 

[Signed^"]  A B . 


(D)  Form  of  complaint^  by  a  landlord^  against  his  tenant. 

r   Com7)ience  and  proceed  as  in  the  preceding  form.,  (5),  to  the  *,  and 

from  that  point  proceed  as  follows:  "hath,  ever  since  the day 

of ,  in  the  year ,  [^fill  these  blanks  uritk  some  day  after  the 

lease  expired.']  and  doth  still,  unlawfully  and  forcibly  detain,  from 
the  undersigned,  possession  of  the  following  premises,  situate  in  the 
township  of ,  in  the  said  county  of ,  and  described  as  fol- 
lows: \_here  describe  the  premises  as  particularly  as  is  directed  in  the 

preceding  form.,  (i?),  and  then  proceed  as  folloivs:']  The  said  C 

D entered  upon  said  premises,  as  the  tenant  of  the  undersign- 
ed; the  lease  therefor  expired,  at  the  time  herein  first  mentioned; 
and  from  that  time  the  said  C D hath  unlawfully  and  for- 
cibly held  over  his  said  term. 

On  the  —. —  day  of ,  in  the  year ,  the  undersigned  duly 

served  upon  the  said  C D ,as  required  by  law,  notice  in  writ- 
ing, to  leave  said  premises.  The  undersigned  asks  process,  and  res- 
titution. 

Dated  this day  of ,  A.  D.  1 8—. 

ISigned,]  A B . 


(E)  Form  of  bond  for  costs^  ivhen  the  plaintiff  is  a  non-resident  of 
the  county. 

Know  all  men  by  these  presents,  that  we,  A B and 

T S ,  are  held,  and  firmly  botuid,  unto  C D , 

[the  defendant^  in  the  sum  of  one  hundred  dollars;  [this  amount  is 


310  FORCIBLE  ENTRY  AND  DETAINER.       [PvL  2,    Tille  17, 

directed  hy  }au\  Stat.  420,  §16;]  for  the  payment  of  which,  we  jointly 
and  severally  bind  ourselves.  Sealed  with  our  seals,  and  dated  this 
—  day  of  — ,  in  the  year  — . 

The  condition  of  this  obligation  is  such,  that  whereas,  said  A 

B —  is  a  non-resident  of —  county,  and  hath  made  his  complaint  to 
G —  n —  and  R —  S — ,  two  justices  of  the  peace,  of  said  county, 

against  C —  D ,  for  forcible  entry  and  detainer,  [or.,  for  forcible 

detainer,  as  the  case  inaxj  Z>e,]  of  certain  premises  in  said  complaint 
described,  and  prays  a  warrant,  summons,  qnd  restitution.  Now  if 
the  said  A —  B —  and  T —  S —  shall  pay  all  the  costs  that  may  ac- 
crue in  said  cause,  in  case  judgment  be  rendered  against  the  said 
A —  B — ,  then  the  above  obligation  shall  be  void;  otherwise  to  re- 
main in  full  force  in  law. 

A B .     (.S-er//.) 

T S .     {Seal) 


Taken  by,  and  executed  before  me. 


G H- 


above  named. 


{F)  Form  of  loarrant.iX)  or  venire  for  a  jury. 


The  State  of  Ohio, County,  ss. 

G —  H —  and  R —  S^ — ,  two  of  the  justices  of  the  peace  in  and 
for  said  county  of — ,  to  the  sheriff,  \or  in  case  of  his  absence  or  le- 
gal dlsijualificatioiu  say.,  to  the  coroner]  of  said  county,  greeting: 

Whereas,  complaint  is  made  to  us  by  A —  B — ,  of —  county,  for 
forcible  [entry  and  detainer,  o?-,  forcible  detainer,  as  the  case  ynayhel^ 
of  the  lands  and  tenements  of  the  said  A —  B — .(2) 

You  are  therefore  commanded,  on  the  behalf  of  the  State  of  Ohio, 
to  cause  to  come  before  us,  upon  the  —  [Jiere  name  the  day  of  trial., 
which  should  he  fixed  at  such  ti?ne  as  will  allow  the  summons  to  be  serv- 
ed on  the  defendant  seven  days  previous  to  trial^  day  of — ,  in  the  year 
— ,  at  —  o'clock,  A.  M.,  [or  P.  M.,  as  the  case  may  ie,]  at  the  office 
of  G —  H — ,  in  the  township  of  — ,  in  said  county  of  — ,  six  judi- 
cious disinterested  men  of  the  county,  who  shall  be  freeholders  in 
the  same,  to  be  impanneled  and  sworn  to  inquire  into  the  forcible 
[entry  and  detainer,  or  say^  detainer,  as  the  case  may  ie,]  aforesaid. 

Given  under  our  hands  and  seals,  this  —  day  of  — ,  A.  D.  1 8 — . 
\Signedl\ 

G H ,     {Seal) 

R S ,     {Seal) 

r  Justices  of  the  Peace. 


(1)  This  form  is  prescribed  by  the  statute,  p.  417. 

(2)  The  name  of  the  plaintiff  is  omitted  in  the  form  contained  in  the  statute. 


§10,(F),(G),(H),(I).]  FORCIBLE  ENTRY  AND  DETAINER.  311 

'    (G)  Form  of  summons  to  the  defendant. 

The  State  of  Ohio, county,  ss. 

To  the  sherift"  [o?-  in  case  of  his  absence  or  legal  disqualification^ 
say^  to  the  coroner]  of county,  greeting: 

You  are  hereby  commanded  to  summon  C —  D —  to  be  and  ap- 
pear before  us,  G —  H —  and  R —  S — ,  two  justices  of  the  peace  in 
and  for  said  county,  at  the  office  of  G —  H — ,  in  the  township  of  — , 
in  said  county,  on  the  [//ere  insert  the  same  hoiu\  day^  and  year^  men- 
tioned in  the  icarrantJ]  to  answer  unto  A —  B — ,  in  an  action  of  for- 
cible [entry  and  detainer,  or  say  detainer  only^  as  the  case  may  ie,] 
of  the  following  premises:  [liere  describe  the  jiremises.,  as  in  thecom- 
jjlaint  of  the  plaintijf'.l  And  of  this  writ  make  service,  at  least  seven 
days  prior  to  the  said  day  above  mentioned,  for  the  appearance  of 
the  said  C —  D — ,  before  us,  and  also  of  this  writ  make  due  return. 

Given  under  our  hands  and  seals,  this  —  day  of  — ,  A.  D,  1 8 — . 

[Sigyied,]  G H ,     (Seal.) 

R S ,     (Seal) 

Justices  of  the  Peace. 

(H)  Form  of  the  oath  to  be  administered  to  the  j my. 

You,  and  each  of  you,  do  solemnly  swear,  in  the  presence  of  Al- 
mighty God,  the  searcher  of  all  hearts,  that  you  will  well  and  truly 
try,  whether  the  complaint  of  A —  B — ,  now  laid  before  you,  is  true, 
according  to  the  evidence:  So  help  you  God. 

Form  of  affirmation  to  the  jury. 

You  do  solemnly  and  sincerely  declare  and  affirm,  that  you  will 
well  and  truly  try,  whether  the  complaint  of  A —  B — ,  now  laid  be- 
fore you,  is  true,  according  to  the  evidence:  And  this  you  do,  under 
the  pains  and  penalties  of  perjury. 


(/)  Forms  of  verdicts.{\) 


No,  1.  —  Form  of  verdict  where  the  action  is  for  forcible  entry  and 
detainer.^  or  detainer  only.,  and  the  jury  find  the  complaint 
true. 

We,  the  jury,  do  find  that  *  the  defendant  is  guilty,  in  manner  and 
form  as  the  plaintiff  hath,  in  his  complaint,  set  forth;  and  that  the 
same,  and  the  matters  therein  stated,  arc  true. 


(1")  The  jury,  in  order  to  prevent  all  mistakes,  sliould  make  out  their  verdict  in 
writing',  and  sifjn  it,  before  they  render  it;  oi',  when  they  have  made  up  their  opiti- 
ion,  the  justices  may,  while  the  jury  are  together,  and  before  the  verdict  in  finally 
received,  reduce  it  to  writing-,  and  let  them  sign  it. 


312  FORCIBLE  ENTRV  AND  DETAINER,         [PrLI^  TUhM ^ 

The  same  form  ns  the  preceding,  is  the  proper  one,  where  the 
action  is  tor  forcible  detainer  only,  and  due  notice  has  been  given 
the  defendant  to  leave  the  premises,  ten  days  prior  to  the  commence- 
ment of  the  suit. 


No.  2. —  Forin  of  the  Verdict^  wJic7'e  the  action  is  for  forcihlc  miry 
and  detainer^  and  the  jury  Jind  the  defendant  guilty  of 
detainer  only. 

We,  the  jury,  do  find  that  the  defendant  is  not  guilty  of  an  unlaw- 
ful and  forcible  entry,  as  complained  against  him.  We  further  find, 
that  *  the  defendant  is  guilty  of  an  unlawful  and  forcible  detainer 
only,  in  manner  and  form  as  the  ])laintiiT  has,  in  his  complaint  set 
forth.  We  do  further  find,  that  the  plainlilfdid,  [or  say,  did  not,  as 
the  case  may  1h\']  notify  the  defendant,  ten  days  prior  to  the  issuing 
of  the  writ  in  this  cause,  to  leave  said  premises,  as  required  by  law. 


No,  3. —  Form  of  the  Verdict.,  when  the  action  is  for  forcible  detain- 
er only.,  and  no  notice  to  leave  has  been  given. 

We,  the  jury,  do  find  that  *  the  defendant  is  guilty,  in  manner  and 
form  as  the  plaintiff  hath,  in  and  by  his  said  complaint,  set  forth. 
We  do  further  find,  that  the  plaintilf  did  not  notii'y  the  defendant 
ten  days  prior  to  the  issuing  of  the  w-rit  in  this  cause,  to  leave  said 
premises,  as  required  by  law. 

No.  4. —  If  the  jury  desire  to  conjine  their  verdict  to  a.  particular 
portion  of  the  premises  described,  in  the  complaint,  {which 
icill  seldom  Iiappen.)  add,  at  the  star^  in  any  of  thepre- 
ceding  J'urms,  th e  follou:ing  : 

"The  defendant  is  not  guilty,  as  complained  against  him,  of  for- 
cibly [entering  and]  detaining  any  other  part  or  portion  of  the 
premises  described  in  said  complaint,  except  the  following:  [here 
must  be  described  the  particular  part  of  the  premises  which  the  jury 
find  that  the  defendant  has  forcibly  entered,  or  detained,  or  both  ;  and 
this  description  must  be  as  full  and  complete  as  the  description  is  requir- 
ed to  be,  in  the  original  complaint  of  the  plaintiff .  After  the  description., 
say.']  and  as  to  the  premises  last  mentioned  and  described,  part  of 
the  premises  described  in  said  complaint,  we,  the  jury,  do  find,  that 
r&c,  he7'e  proceed  from  the  above  mentioned  point.,  *,  in  the  forms  of 
the  verdicts.,  to  the  end,  according  to  the  truth.'] 


No.  5. —  Form  of  Verdict  for  the  Defendant. 
We,  the  jury,  do  find  the  defendant  not  guilty. 


§^OiO)i(K),(L).]  FORCIBLE  ENTRr  AND  DETAINER.  313 

(K)  Forms  of  Judgments. 

No.  1. —  Wlien  the  jury  Jind  the  whole  complaint  true;  whether  the 
action  is  brought  for  both  forcible  cntrxj  and  detainer.,  or 
detainer  only. 

It  is  therefore  considered  by  us,  the  said  justices,  that  the  said 
plaintiff  have  restitution  of  the  premises  mentioned  and  described 
[in  his  said  complaint;  or,  if  the  verdict  of  the  jnrij  is  for  only  part 
of  the  pre?}iises,  say,  in  the  said  verdict  of  the  jury;]  and  recover  of 
said  defendant,  the  cosfs  herein,  taxed  at  —  dollars,  —  cents. 

No.  2. —  For7n  of  judgment  for  the  jilaintiff,  when  the  verdict  of  the 
jiiry  finds  the  defendant  guilty  of  detainer,  and  that  no- 
tice to  leave  the  premises,  was  not  served  on  the  defendant. 

It  is  therefore  considered  by  us,  the  said  justices,  that  the  said 
plaintiff  have  restitution  of  the  said  premises  mentioned  and  de- 
scribed [in  his  said  complaint;  or,  if  the  verdict  of  the  jury  is  for  part 
only  of  the  premises,  say,  in  the  said  verdict  of  the  jury.](f) 

{L)  Form  of  the  Writ  of  I{estitution.(2) 

The  State  of  Ohio, county,  ss. 

G H- and  R S ,  tw^o  of  the  justices  of  the  peace 

in  and  for  said  county,  to  the  sheriff  of  said  county,  greeting; 

Whereas,  at  the  court  of  inquiry  of  forcible  entry  and  detainer, 
[or,  an  unlawful  and  forcible  detainer,  as  the  case  may  be,']  held  be- 

lore  us,  at  the  office  of  G H ,  in  the  township  of — ,  in  said 

county  of — ,  on  the  —  day  of — ,  in  the  year — ,  the  jurors,  impan- 
neled  and  sworn  according  to  law,  did  return  their  verdict  of  guilty. 
Whereupon,  it  was  considered  by  us,  that  [the  said?]  A —  B —  should 
have  restitution  of  the  premises  following:  [here  describe  the preinises 
to  be  restored,  as  particularly  as  they  can  be,  or  are  described  in  the 
proceedings^  Therefore,  we  require  you,  that  taking  with  you  the 
force  of  the  county,  if  necessary,  you  cause  [the  said?]  C —  D — 
to  be  forthwith  removed  from  the  premises;  and  the  said  A —  B — 
to  have  the  peaceable  restitution  of  the  same:  *  [That  part  of  the 

(1)  The  judgrnent  for  costs  must  be  omitted;  each  party  being  bound  to  pay 
the  costs  by  him  made.  The  costs  will  tliercfore  be  apportioned  as  follows:  Each 
party  must  pay  the  costs  of  all  the  writs  which  issued  at  his  instance,  and  the  costs 
of  serving-  tht-m;  and  the  fees  of  his  own  witnesses.  The  plaintiff  must  pay  for 
the  issuing  and  service  of  the  warrant,  and  the  fees  of  the  jury;  and  the  costs  at- 
tending tlie  issuing  and  service  of  the  writ  of  restitution. 

Eacli  party  will  be  liable  to  the  separate  suit  of  those  to  whom  they  owe  the 
fees  or  costs. 

(2)  The  form  of  this  writ  is  prescribed  by  statute,  p.  419. 

40 


314  FORCIKLK  ENTIiy   AND  DKTAINKR.         [^F I't.  ^2^  Title  \1  ^ 

writ  which  is  belwcan  the  two  atars^  slioahl  br  omitted^  in  case  the  plain- 
tiff is  not  entitled  to  recover  costs-]  tind  also,  that  you  levy  of  the 

goods  and  fhattols  of  the  said  C —  I) ,  the  sum  of  — ,  being  the 

costs  taxed  against  him,  in  the  trial  aforesaid,  together  with  — ,  for 
this  writ;  and  satisfy  yourself  your  leijjal  fees;  and  for  want  of  such 

goods  and  chattels  of  the  said  C —  D ,  by  you  found,  you  are 

commanded  to  take  the  l)ody  of  the  said  C —  D ,  and  him  com- 
mit to  the  common  jail  of  said  county,  there  to  remain  until  he  shall 
pay  the  sum  aforesaid,  together  with  all  the  fees  arising  on  the  ser- 
vice of  this  writ,  and  until  he  be  discharged  by  due  course  of  law;  * 
and  make  return  of  this  writ,  with  your  proceedings  thereon,  with- 
in twenty  days  from  the  date  hereof. 

Witness  our  hands  and  seals,  at  the  township  of — ,  in  the  county 
of — ,  aforesaid,  the  —  day  of — ,  in  the  year  — . 

C; II ,     (Seal) 

Justices  oi  the  Peace. 


(M)  Docket  entry. {\) 


The  State  of  Ohio, County,  ss. 

A B ,  ) 

vs.  > 

C D- 


Proccedings.  under  the  act  to  regulate  the  action  of  forcible  eiv 

ti'y  and  detainer,  had  before  me,  G —  II ,  a  justice  of  the  peace 

in  and  for  the  township  of — ,  in  said  county,  and  R —  S — ,  a  justice 
of  the  peace  in  and  for  —  township,  in  the  same  county. 

[Signed^  G H , 

R S . 

May  4,  1847.  Tlie  said  A —  B —  made  complaint  in  writing,  to 
us,  the  aforesaid  justices,  and  which  complaint  is  in  substance  as  fol- 
lows: [liere  copy  out  the  complaint  in  full.]  The  said  plaintilf  being 
a  non-resident  of  the  county,  a  bond,  with  T —  X — ,  as  his  surety, 
was  duly  taken  by  the  said  G —  H — ,  and  filed  with  him;  and  there- 
upon, on  the  same  day,  3Iai/  4,  1847,  we,  the  said  justices,  issued  a 
summons  to  the  defendant,  on  said  complaint,  duly  filed  with  us,  for 
appearance  and  trial,  at  the  office  of  the  said  G —  tl — ,  in  the  town- 
ship of — ,  in  said  county,  on  the  15th  day  of  J/a?/,  1847,  at  2  o'clock, 
P.  M.  At  the  same  time,  (Mai/  4,  1847,)  we  issued  a  warrant  for  a 
jury,  to  appear  at  said  time  and  place  of  trial.  Both  writs  deliver- 
ed to  the  slieriiT  of  this  county. 


(1)  Tlie  proceeding's  in  the  action  should  be  entered  in  the  docket  of  one  of  the 
justices  before  whom  the  cause  is  tried. 


§10,  (M).]  FORCIBLE  ENTRT  AND  DKTAINER.  Si 5 

May  15,  1847,  2  o'clock^  P.  M.  At  the  time  nnd  place  above 
designated  for  trial,  we  the  said  justices,  met,  and  the  parties  ap- 
peared. Summons  returned  by  sheriff'.  '•'•May  5,  1847,  Personally- 
served,  by  reading  to  the  defend;  nt.  Fees,  — .  M —  A — ,  Sheriff." 
Warrant,  also,  returned  by  the  sheriff".  [Ilcre  copy  tlerehirv,  u:ith 
the  names  of  the  jury.']  AH  the  said  jurors,  except  A —  L ,  ap- 
peared. The  said  jurors  who  appeared,  and  L —  W — ,  a  talesman, 
in  the  place  of  said  A —  L-^,  were  duly  impanneled  and  sworn, 
and  the  parties  proceeded  to  trial.  The  complaint  was  laid  before 
the  jury,  and  after  b.earing  the  evidence,  &c.,  the  jury  returned  their 
verdict  to  us,  the  said  justices,  as  follows:  [^lici-c  copy  out  the  verdict; 
and  then  enter  the  Judg7iient.^  as  directed  in  the  preceding  forms. 


TITLE  XVIir. 


FRAUDS.(l) 


SECTION    I.     WHEN  A  SUIT  MAT  BE    MAINTAINED    EOR    THE    ASSERTION  OE  A 
FALSEHOOD. 
H.    OF  SALES,  &C.,  MADE  BY  DEBTORS  TO  DEFRAUD  CREDITORS. 


Sec.    I. WHEN  A  SUIT  MAY  BE   MAINTAINED    FOR    THE  ASSERTION  OF  A 

FALSEHOOD. 

Many  things  may  be  reproved  in  sound  morals,  whicli  are  left,  by 
the  law  without  remedy,  except  by  an  appeal  to  the  conscience  of 
the  party  himself.  As  a  matter  of  honesty,  any  deviation  from  the 
most  exact  and  scrupulous  sincerity,  is  repugnant  to  the  good  faith 
that  ought  to  prevail.  But  in  civil  tribunals,  a  person  cannot  be 
allowed  to  complain  of  trifling  deviations  from  good  faith  in  the 
party  with  whom  he  has  contra'cted.  It  should,  therefore,  be  always 
borne  in  mind,  that  he  who  adopts  the  law  of  the  land,  as  the  only- 
guide  in  his, dealings,  or  the  only  rule  for  his  moral  conduct,  is  nei- 
ther a  good  neighbor,  nor  an  honest  man. 

A  falsehood,  which,  in  law,  will  render  the  person  guilty  of  it,  lia 
ble  to  suit,  must  be  accompanied  by  the  following  circumstances: 

FirsL—^Thc  party  asserting  the  falsehood,  must  know  at  the  time 
he  makes  the  assertion,  that  it  is  a  falsehood.  Tlierefore,  when  a 
person  asserts  a  thing  which  he  believes  to  be  true,  but  which,  in 
fact,  is  false,  whereby  nnother  is  deceived,  and  injured,  he  is  not,  in 
general,  liable  therefor.  Thus:  A  represented  to  B,  in  good  faith, 
that  C  was  in  good  credit,  and  responsible,  and  B  was  thereby  in- 
duced to  trust  C,  for  a  largo  amount,  and  lost  the  debt,  in  conse- 
quence of  C  being  at  the  time,  insolvent;  it  was  holden,  that  A  was 
^ot  liable  for  tlie  misrepresentation.* 

(a)  2  East,  92;  27  Eng.  C.  L.  Rep.  194. 

(1)  As  to  the  fraudulent  misrepresentation  of  the  quality  of  articles  sold,  see 
Title  32,  Sec.  6. 


[Prt.  2,  Title  18,  §1.]  frauds.  317 

Second. — The  party  asserting  the  falsehood,  must  at  the  time  in- 
tend to  deceive,*     Fraud  consists  in  intention.'' 

Third. — The  falsehood  must  be,  not  only  in  something  material, 
but  it  must  be  in  something,  in  regard  to  which,  the  one  party  pla- 
ces a  known  trust  and  confidence  in  the  other.  For,  if  the  false- 
hood be  of  such  a  nature,  that  the  party  deceived  by  it  had  no  right 
to  place  reliance  upon  it,  and  it  was  his  own  folly,  in  consequence 
of  his  not  exercising  common  sense,  and  ordinary  discretion  and 
sagacity,  that  he  was  deceived,  he  cannot  maintain  an  action  for 
the  injury.  Thus:  where  a  party,  upon  making  a  purchase  for 
himself  and  his  partners,  fdsely  stated  to  the  seller,  to  induce  him 
to  make  the  sale,  that  his  partners  would  not  give  more  for  the 
property  than  a  certain  price;  whereas,  in  truth,  they  expected 
and  intended  to  give  more;  it  w^as  holden,  that  it  was  the  seller's 
own  indiscretion  to  rely  upon  such  false  assertions.*^  The  common 
language  of  puffing  and  commendation  of  articles,  in  relation  to  such 
things  as  are  equally  open  to  the  observation,  examination,  and 
skill  of  both  parties,  and  upon  which,  it  is  understood,  that  every 
buyer  exercises  his  own  judgment,  comes  within  the  rule  above 
laid  down;  inasmuch  as  no  one  is  supposed  to  be  deceived  by  such 
false  assertions. 

Fourth. — The  party  complaining  of  the  deceit,  must  be  misled  by 
the  falsehood;  for,  if  he  knows  the  assertion  to  be  false  when  made, 
it  cannot  be  said  to  influence  his  conduct. 

Fifth. — The  falsehood  must  constitute  an  inducement,  or  motive, 
to  the  act,  or  omission,  of  the  party  deceived.  Thus:  if  you  are 
ignorant  of  the  credit  and  responsibility  of  A,  and  C  knowing  him 
to  be  insolvent,  represents  his  pecuniary  circumstances  to  be  good, 
in  order  to  deceive  you,  and  to  induce  you  to  trust  him,  and  you 
are  thereby  deceived,  and  are  induced  to  trust  him,  and  suffer  q, 
loss,  you  have  your  remedy  against  C/ 

Sixth. — And  lastly;  the  party  deceived  must  be  misled  to  his 
injury;  a  damnge  must  result,  from  the  party  deceived  acting  on  the 
faith  of  the  falsehood.(l) 


(a)  2  Wend.  Rop.  380;  per  Suthkrland,  J.;  3     (c)  12  East,  637.  Kent's  Com.  4!56,  487. 

T.  U.  51 .  (d)  8  Johns.  Rep.  19;  3  T.  R.  51. 

(b)  5  Crancli,  351,  per  Marshall,  C.  J. 


(1)  2  Kent^s  Com.  483;  7  Wend.  9;  2  Td.  3S5.  In  connection  with  the  subject 
of  (rand,  it  m:iy  be  lieie  remai  kcd,  as  a  g-encral  rule,  applicable  to  a  variety  of 
cases,  that,  where  one  man  re[)oses  in  another  a  special  confidence,  and  a  loss 
arises  from  the  abuse  of  that  confidence,  if  the  ([uestion,  who  shall  bear  the  loss? 
arises,  between  an  innocent  third  person,  and  him  who  reposed  the  confidence; 
the  law  will  throw  the  loss  upon  the  latter, — Chilly's  Con.  224,  {3d  Jim.  Ed.) 


318  FiiAims.  [Prt.  2,  Tille  18, 

Sec.  II. OF  SALES  &:C.  MADE  BY  DEUTOIIS  TO  DEFRAUD  CREDITORS. 


The  statute  of  Olilo  provides,*  '-that  all  deeds  of  gift,  and  con- 
veyance of  goods  and  chattels,  made  in  trust,  to  the  use  of  the  per- 
son or  persons  making  the  same,  shall  he  void  and  of  no  effect;  and 
that  every  gift,  grant,  or  conveyance,  of  hinds,  tenements,  heredit- 
aments, rents,  goods,  or  chattels,  and  every  hond,  judgment,  or  exe- 
cution, made  or  ohtained  with  intent  to  defraud  creditors  of  their 
just  and  lawful  dchts  or  damages,  or  to  defraud  or  to  deceive  the 
person  or  persons  who  sh:dl  purchase  such  property,  shall  be  deemed 
utterly  void,  and  of  no  effect." 

The  statute  further  provides,''  "that  where  any  loan  of  goods,  or 
chattels,  shall  be  pretended  to  have  been  made,  to  any  person  wuth 
whom  (or  those  claiming  under  him)  possession  shall  have  remained 
for  the  space  of  five  years,  such  goods  and  chattels  shall  be  deemed 
the  property  of  the  person  having  had  such  possession;  unless  a 
reservation  of  the  right  of  such  goods  and  chattels  shall  have  been 
made,  to  the  lender,  in  writing,  and  such  writing  shall  have  been 
recorded  within  six  months  from  the  time  of  making  such  loan,  in 
the  recorder's  office  of  the  county  where  one  or  both  of  the  par- 
ties shall  then  have  resided. 

Any  assignment  or  transfer  of  property,  made  by  an  applicant 
for  relief  under  the  act  for  the  benefit  of  insolvent  debtors,  after 
his  arrest,  and  previous  to  his  examination  before  the  commissioner 
of  insolvents,  is  void.*^ 

The  details,  or  circumstances  which  shall  constitute  a  fraudulent 
or  void  sale,  as  against  creditors,  seem  to  mock  th(^  efforts  of  a  gen- 
eral rule.  The  fraudulent  arts  and  devices  by  which  a  sale,  or  a 
iieu,  may  be  compassed  and  disguised,  are  so  various,  that  the  evi- 
dence to  establish  or  to  repel  them,  must,  almost  always,  vary  with 
the  cases,  as  they  arise. 

A  few  of  the  leading  rules  upon  this  subject,  will  be  here  collected. 

An  absolute  bill  of  sale,  is  one,  Avhich,  on  its  face,  appears  to  con- 
vey a  complete  and  absolute  title  and  ownership  of  property  to  a 
buyer,  without  reserving  any  right,  use,  or  possession,  to  the  sellei-. 
When  such  a  bill  of  sale,  or  a  verbal  sale,  of  such  a  kind,  is  made, 
and  the  seller  retains  possession  of  the  property,  it  is  void,  as 
against  the  creditors  of  the  seller;  unless  the  buyer  can  show  that 
the  transaction  w'as  fair  and  honest,  and  that  the  possession  was  re- 
tained for  a  fair,  honest,  and  reasonable  purpose."^  So,  a  voluntary 
sale  of  chattels,  or  a  mortgage  of  chattels,  with  an  agreement  in, 
or  out  of  the  bill  of  sale  or  mortgage,  that  the  seller  may  keep  pos- 
session, is  also  void,  as  against  creditors;  unless  the  buyer,  or  mort- 

(a)  Slat.  422,  51.2.  (d)  Wrisl.t'8  Rep.  136.  359.  190.  213.  439; 

(b)  Id.  ib.  $3.  3  Cow.  Rep.  189;  2  Wend.  Rep.  446. 

(c)  Id.  442,  $12. 


§2.]  li'RAUDS.  319 

gager  can  show  that  the  transaction  was  fair  and  honest,  and  that 
the  possession  was  retained,  for  a  fair,  honest,  and  reasonable  pur- 
pose/ So,  if  a  creditor  seize  and  sell  by  an  execution,  the  goods 
of  his  debtor,  and  he,  or  any  other  purchaser  of  them,  suifer  them 
to  remain  in  possession  of  the  debtor,  they  will  continue  liable  to 
subsequent  executions  against  him;  unless  the  circumstances  under 
which  he  lias  the  possession,  are  known  in  the  neighborhood,  and 
unless  such  possession  was  -retained  for  some  fair,  honest,  and  rea- 
sonable purpose,  to  be  shown  by  the  purchaser.'' 

In  all  the  above  cases,  it  will  be  perceived,  that  proof  of  the  seller 
remaining  in  possession  of  the  goods,  is,  in  and  of  itself,  conclusive 
evidence,  that  the  sale  is  void,  as  against  a  subsequent  creditor  who 
levies  on  the  goods.  No  other,  or  iurther  evidence,  on  the  part  of 
such  subsecjuent  creditor,  is  necessary,  to  establish  the  fraud;  and 
the  justice  must  declare  the  sale  void,  as  to  such  creditor,  unless  the 
buyer  shows  the  sale  to  have  been  honest,  and  that  the  possession 
was  retained  by  the  seller,  for  a  fair  and  reasonable  purpose,  &c., 
as  above  mentioned. 

When  individuals  combine  together  to  commit  a  fraud,  they  often 
show  an  over  anxiety,  to  accompany  that  part  of  the  transaction 
which  appears  honest,  with  more  solemnity,  form,  or  notoriety, 
than  ordinarily  attends  it  when  the  object  in  view  is  honest.  For 
instance:  if  an  attempt  is  to  be  made  to  protect  property  from  cred- 
itors, by  a  sham  sale,  the  parties  will,  perhaps,  execute  a  bill  of  sale, 
in  due  form;  deliver  and  re-deliver  the  property  in  the  presence  of 
a  witness,  to  whom  they  will  explain  the  right  of  the  seller  to  the 
possession.  These  things,  men  are  not  apt  to  do,  if  they  are  deal- 
ing with  honest  intentions;  nor  is  it  the  common  mode  adopted  by 
lionest  men,  in  the  sale  or  purchase  of  property.  Such,  or  the  like 
circumstances,  are,  therefore,  in  general,  satisfactory  indications  of 
fraud;  and  are  conclusive,  if  no  good  reason  appears  why  the  sale 
was  not  made  in  the  quiet  and  common  mode  in  which  men  deal 
together. 

If  a  parent  give  his  child  property,  and  at  the  time  of  the  gift, 
owes  debts,  the  pi'operty  will,  in  general,  be  liable  to  their  pay- 
ment, and  the  gift  void.  When,  however,  there  is  no  fraudulent 
intent,  and  a  gift  is  made  to  a  child,  if  the  parent  is,  at  the  time,  in 
prosperous  circumstances,  unembarrassed,  and  the  gift  a  reasonable 
provision,  according  to  the  age  and  condition  in  life  of  the  child, 
and  leaving  enough  for  the  payment  of  the  then  existing  debts  of 
the  parent,  the  gift  is  good  and  valid,  as  against  those  debts,  even  if 
the  parent  afterwards  become  insolvent.' 

A  voluntary  conveyance,  in  consideration  of  love  and  affection, 
by  a  parent  to  a  child,  is  void,  only,  as  to  antecedent,  and  not  sub- 
sequent creditors,  unless  made  with  a  fraudulent  intent,  to  protect 
the  property  from  the  paynient  of  debts,^ 

(a)  2  Kent'rt  Com.  623;  3  Cow    Ktp.  189,  ii.  (Ii)  15  Johns.  Rep.  42(5;  3  Cow.  Hep.  272;  1  Ld, 

(1);  9  Johns.  Kep.  338.  Uayni.  724;  2  Bos.  and  I'ul.  5d;  10  Kng. 

(c)  Story's  Equity,  .360.  354;   11  Wheat.  211;  C.  L.  IJfp.  432;  5  Id.  1«7;  1  M.  and  8. 

5  Ohio  Kcp.  121.  251;  4  Taunt.  823;  8  Id.  838. 

'd)  8  Wheat.  242. 


320  FRAUDS.  [PW.2,  rz7/el8,  §2.] 

When  a  transfer  of  property,  by  sale  or  mortgage,  has  been  made, 
with  a  view  for  the  purpose  of  preventing  the  creditors  of  the  sel- 
ler from  collecting  their  chiims,  the  justice  nnist  declare  it  void, 
even  though  the  buyer  ])aid  a  full  and  valuable  consideration  for 
the  property,  and  took  and  retained  i)ossession  of  it.*^ 

But  cases  of  this  sort  are  carefully  to  be  distinguished  from 
others,  v^'here  a  sale  or  assignment,  or  other  conveyance,  merely 
amount  to  giving  a  preference  in  payment,  to  another  creditor ;S  or 
where  the  assignment  or  conveyance  is  made  for  the  benefit  of  all 
creditors.  Such  preference,  and  such  general  assignment  or  con- 
veyance is  not  void;S  but  if  made  to  trustees  in  contemplation  of 
insolvency,  with  the  dosign  to  give  such  preference,  a  court  of 
chancery  will  distribute  tlie  property  equally  among  all  tlie  cred- 
itors.'^ 

It  must  be  observed,  that  although  conveyances  and  transfers  of 
property,  made  to  defeat  or  defraud  creditors,  are  void,  as  to  exist- 
ing creditors,  they  are  perfect,  etiectual,  and  binding,  as  between 
the  parties  to  the  conveyance  or  transfer,  and  cannot  be  set  aside 
by  the  seller  or  mortgager,  if  he  should  become  dissatisfied  with 
the  transaction.  A  conveyance  of  this  sort  is  void  only,  as  against 
creditors,  and  then  only  to  the  extent  in  which  it  may  be  necessary 
to  deal  with  the  property  for  their  satisfaction.  To  this  extent, 
and  to  this  only,  it  is  treated  as  if  it  had  not  been  made.  To  every 
other  purpose  it  is  good.  Satisfy  the  creditors,  and  the  conveyance 
stands. 

If  the  person  who  fraudulently  holds  property,  in  the  manner 
above  mentioned,  sell  it  to  a  third  person,  who  buys  it  in  good  faith, 
without  having  notice  of  the  fraudulent  transfer,  he  will  hold  it  free 
from  the  claiui  of  the  creditors.' 

(e)  3  Co.  81;  Cowp.  434:  Burr.  474,  475;  14         (li)  Stat.  717,  §68. 

Mass.  Rep.  245;  12  Id.  456.  (i)   1  Ohio  Kep.  479. 

(g)  See  Slat.  718,  note. 


TITLE  XIX. 


GUARANTY,  AND  PRINCIPAL  AND  SURETY. 


The  contract  of  surety  takes  place,  when  one  person,  to  obtain 
some  trust,  confidence,  or  credit  tor  another,  engages  to  be  answer- 
able for  him.  The  person  for  whom  the  surety  is  answerable,  is 
called  the  principal  debtor,  A  Surely^  is  one,  who,  in  order  to  ob- 
tain for  another  some  trust,  confidence,  or  credit,  engages  to  be  an- 
swerable for  him.  The  Priacipal^  is  the  person  for  whom  the  surety 
engages. 


SECTION  r. 

n. 


HI. 
IV. 


V. 

vr. 


OF  THE  Manner  in  which  sureties  May  contract. 

WHAT  PROMISES    COME    WITHIN    THE    STATUTE,  AND  MUST  BE 

IN  writing;  and  what  do  not. 

OF  THE  CONSIDERATION  FOR  THE  PROMISE  OF  THE  SURETY. 
WHAT  IS  A  SUFFICIENT    AGREEMENT  IN  WRITING,  UNDER  THE 

STATUTE. 
OF  THE  EXTENT  OF  THE  CONTRACT   OF  SURETY. 
HOW  THE  SURETY  MAY  BE  DISCHARGED   BY  THE  ACTS  OF  THE 

CREDITOR. 
OF  THE  RIGHTS   AND    REMEDY    OF    THE    SURETY    AGAINST    HIS 

PRINCIPAL. 
OF  CONTRIBUTION. 


Sec    I. OF  THE  MANNER  IN  WHICH  SURETIES  MAY  CONTRACT. 


The  statute  of  this  State "^  requires,  "that  upon  any  special  pro- 
mise to  answer  for  the  debt,  default,  or  miscarriage  of  another,  the 
agreement,  or  some  -Hicmorandum  or  note  thereof,  siiall  be  in  writ- 
ing, and  signed  by  the  party  to  be  charged  therewith,  or  by  some 
other  persmi,  thereunto  by  him  lawfully  authorized."  A  verbal 
agreement,  therefore,  to  answer  for  the  debt,  default,  or  miscarriage 
of  another,  comes  within  the  operation  of  the  statute,  and  is  void. 


(a)  Stat.  423,  $5. 


41 


322  GUAiiANTr.  [Frt. '2,  Title  \% 

Sec.  II. —  WHAT  puomisks  comk  within  the  statute,  and  must  be  in 

WIUTINO;    AND  WHAT  DO  NOT, 


First.  If  the  princii):il  debtor  be  not  entirely  discharged  under 
the  ])romise  and  undertaking  of  the  surety,  the  Mgreenient  of  the 
surety,  if  not  reduced  to  writing,  will,  in  general,  be  void."  Thus: 
A  owes  you;  and  H  agrees  with  you,  that  if  you  will  forbear  to  sue 
A,  ten  days,  he  will  pay  the  debt  of  A,  and  you  wait  accordingly; 
this  jMoniise  is  void,  unless  in  writing.  A  would  have  still  remain- 
ed liable  for  the  debt,  even  if  tlie  agreement  of  1>  had  been  in  writ- 
ing. 

""So,  if  B  should  ask  you  to  sell  goods  to  A,  and  promise  that  A 
would  pay  for  them;  or  promise,  that  he  (B)  would  pay  for  them  if 
A  did  not;  and  you  should  sell  the  goods  to  A;  this  promise  of  B' 
Avould  be  void,  for  the  reason,  that  it  is  a  promise  to  pay  another's 
debt,  and  of  course  should  be  in  writing. 

Second.  But  when  the  contract  of  the  surety  extinguishes  the 
first  contract,  so  that  the  first  debt  no  longer  exists,  the  second  con- 
tract is  binding,  although  not  reduced  to  writing.''  Thus:  A  owes' 
you,  and  B  agrees  that  if  you  will  release  the  debt,  or  will  let  A  out 
of  custody,  on  an  execution  issued  upon  the  debt,  (the  elfect  of  which 
is  to  discharge  the  judgment,)  he  will  i^ay  the  debt,  and  you  do  it 
accordingly;  B  will  be  bound  by  the  ])romise,  although  there  be  no 
written  agreement  between  you  and  him.  The  debt  of  A,  by  such 
an  agreement,  is  extinguished. 

Third.  If  a  person  promise  to  answer  for  the  debt  of  another, 
in  consideration  that  a  lien  which  that  other  has  for  the  debt,  shall 
be  given  uj);  this  promise,  thus  founded  upon  a  new  consideration, 
independent  of  the  original  debt,  is  binding,  though  not  in  writing, 
and  though  the  original  debt  remain.""  Thus:  when  a  plaintiff  has 
attachedor  taken  goods  on  execution;  or  a  mechanic,  tavern  keep- 
er, pawnee,  or  other  person,  has  a  lien  on  the  goods  of  another,  for 
a  debt,  or  work,  and  you  promise  to  pay  such  person  the  debt  if  he 
will  deliver  up  tlie  goods,  which  he  does  accordingly;  you  are  bound 
by  your  promise,  though  not  in  writing. 

Fourth.  And  so,  when  a  promise  to  pay  the  debt  of  a  third  per- 
son arises  out  of  some  new^  consideration  of  benefit  to  the  promiser, 
or  harm  to  the  promisee,  moving  to  the  promisor,  either  from  the 
promisee,  or  the  original  debtor;  such  j)romise  will  be  binding, 
though  not  in  writing,  and  though  the  original  debt  still  subsist. 
Thus:  where  A  owed  S,  and  B,  in  consideration  that  A  delivered 
him  hay  to  the  value  of  the  debt,  verbally  promised  to  pay  S:  it 
was  holden,  that  B  was  bound  by  his  promise,  the  hay  having  been 
delivered."^ 

(a)  2  T.  R.  80,  81;  I.il.  Ray.  1035;  2  Eng.  C.  660;  1  Wils.  305;  25  Eii<r.C.L.  Rep.  632. 

L.  Uc|).  338;  10  Johns.  I!e|).37.  (d)  4  Cowcn's  Rep.  432,  where  the  En-ilish  and 

(b)  Corny,  on  Con.  lilG,  1!!7,  cil.  1826.  Anieriran  cases  arc  reviewed;  5  Wend. 
(c;  4  Taunt.  117;  3  Esp.  87;  13  Emk.  C.  L.  Rep.  Rep.  277. 

425;  3   Burr.   1886;   Wright's  Rep. 


§2.]  GUARANTY,  323 

Fifth.  With  respect  to  the  sale  of  goods,  the  rule  is,  that  if  the 
person  for  whose  use  the  goods  are  furnished,  is  at  all  liable  for  the 
debt,  any  other  promise  by  a  third  person,  to  pay  that  debt,  must  be 
in  writing,  or  it  will  be  void.  But  if  the  credit  is  given,  and  the 
debt  for  the  goods  is  contracted,  by  one  person,  and  the  goods  are, 
at  his  request,  delivered  to  another,  to  whom  no  credit  is  given,  and 
who  incurs  no  debt,  the  person  to  whom  the  credit  is  given,  being 
alone  liable,  his  promise  need  not  be  in  writing.*  Thus:  if  A  should 
say  to  you,  ''Let  B  have  ten  yards  of  cloth,  and  I  will  pay  you  for 
it,"  and  you  do  it;  this  is  the  debt  of  A  alone.  It  is  like  a  written 
order  by  A  for  goods,  in  which  B  is  not  liable,  and  consequently 
A's  promise,  being  for  his  own  debt,  and  not  for  that  of  another,  is 
binding  on  him,  though  not  in  writing.  But  if  A  had  said  to  you, 
"Let  B  have  ten  yards  of  cloth,  and  I  will  pay  you  if  he  does  not," 
and  you  d-o  it;  A's  promise  shows,  that  it  was  not  his  intention  to 
pay  his  own  debt,  but  B's,  provided  B  did  not  pay  it  when  due:  and 
this  being  a  promise  to  answer  for  the  debt  of  another,  is  void,  if 
not  in  writing. 

So,  when  A,  (whose  nephew  wished  to  carry  newspapers,)  said  to 
B,  the  publisher,  "If  my  nephew  should  call  for  papers,  I  will  be 
responsible  for  the  papers  he  shall  take;"'  and  the  nephew  accord- 
ingly took  papers,  and  told  B  that  his  uncle  would  pay  for  them;  it 
was  holden,  that  this  was  an  original  agreement  between  A  and  B, 
and  not  the  debt  of  the  nephew;  and  therefore,  no  writing  was  ne- 
cessary.'' 

In  cases  of  this  kind,  it  will  be  perceived  that  the  question  is,  Who 
contracted  the  debt,  and  to  whom  was  the  credit  given?  If,  solely, 
to  the  person  who  ordei-ed  the  goods,  his  promise  is  binding,  though 
not  in  writing;  if  to  the  person  to  whom  the  goods  were  furnished, 
(the  person  at  whose  request  the  goods  were  furnished  being  merely 
the  surety.)  then  the-case  is  within  the  statute,  and  the  promise  of 
the  latter  must  be  in  writing.  It  is  necessary,  sometimes,  to  take 
into  consideration,  not  only  the  expressions  used  by  the  parties,  but 
the  situation  of  the  defendant  at  the  time  of  his  undertaking,  in 
order  to  ascertain  whether  he  is  the  sole  debtor,  or  a  mere  surety  for 
the  debt  of  another.* 

The  rules  last  stated  are  applicable,  as  well  to  cases  where  work 
or  labor  is  contracted  for,  as  where  goods  are  ordered  to  be  deliv- 
ered to  a  third  person.  Thus:  if  A  should  say  to  you,  "Make  a 
plough,  and  when  B  calls,  let  him  have  it,  and  1  will  })ay  you,"  and 
you  do  it;  this  is  a  debt  of  A,  alone,  and  he  is  liable  on  his  verbal 
promise. 

Sixth.  The  statute  was  intended  to  apply  to  promises  made  to 
the  person  to  whom  a  debt  is  due,  and  in  order  to  secure  its  pay- 
ment to  him.  There  is,  therefore,  a  class  of  cases,  that  do  not  come 
within  the  operation  of  the  statute,  because  the  promise  is,  cither  to 
the  person  who  oircs  the  debt,  or,  though  made  to  the  person  to 

(a)  2  T.  R.  no.  (c)  Corny,  on  Con.  185,  ed.  1826. 

(*)  17  JohnB.Rep.  114;  1  Esj>.  121. 


324  GUARANTY.  [Prt.  2,  Title  19, 

whom  the  debt  is  due,  is  not  made  to  .srcinr  its  p:i}'mcnt.  Thus:  if 
there  is  a  suit  b}^  A  auainst  you,  and  J3  promises  A  to  jiay  him  lifty 
dollars,  if  he  will  withdraw  the  suit,  and  he  does  it;  Ji  is  liable  on 
his  promise,  thou<i;h  not  in  writinii:"  ibr,  the  promise  is  not  to  pay 
your  debt,  but  a  sum  of  money  distinct  from,  and  independent  of  it. 

So,  if  A  owes  you,  and  B  promises  A  lor  ten  dollars,  received,  to 
indemnify  him  against  the  debt;  this  promise  need  not  be  in  writ- 
inff.''  So,  if  A,  at  the  re(iucst  of  B,  docs  an  act  for  liim,  B  promis- 
ino-  to  save  A  harmless  from  all  loss  in  consequence  of  doing  the  act, 
and  A  afterw-ards  is  subjected  to  a  loss,  or  a  suit,  on  account  of  the 
act,  he  may  recover  on  the  promise:  it  need  not  be  in  writing.'  So, 
if  B  promise  A  to  indemnify  him,  if  he  will  go  bail  for  me  in  a  suit 
in  which  B  is  interested,  and  A  does  it,  and  is  compelled  to  pay  the 
debt;  B  is  Hable  on  his  promise,  though  not  in  writing.** 

In  all  these  cases,  it  will  be  perceived  that  there  is  no  promise 
or  liability  by  B,  to  secure  a  pre-existing  debt  or  claim,  if  any  there 
may  be;  but  the  contract  of  B  is  an  original  one,  founded  upon  a 
distinct  consideration,  and  independent  of  such  debt  or  claim.  In 
these,  and  the  like  cases,  the  promise  is  binding,  though  not  it  writ- 
ing. 

Seventh.  If  A  owes  you,  and  deposits  with  B  money  to  meet  the 
debt,  and  B  makes  a  verbal  promise  to  A,  that  he  will  pay  you  the 
money;  if,  on  demand,  he  should  refuse  to  pay  it,  you  may  recovex* 
it  of  him  by  suit.* 

So,  if  instead  of  money,  A  place  property  in  the  hands  of  B, 
with  an  agreement  that  he  shall  sell  it,  and  pay  you  out  of  the  pro- 
ceeds, and  he  sells  the  property;  you  cannot  sue  him  for  the  money, 
unless  he  promised  to  pay  it  over;  but  his  promise  need  not  be  in 
writing.^  If,  however,  A  has  received  the  property  for  the  above 
purpose,  and  not  sold  it,  his  promise  to  you  to  pay  the  debt  would 
be  void,  if  not  in  writing.*^ 

Where  a  verbal  promise  to  pay  the  debt  of  another  is  void,  and 
that  promise  forms  a  part  of  a  verbal  agreement,  and  is  so  connect- 
ed W'ith  the  other  part,  as  to  make  one  entire  contract;  such  con- 
tract is  wholly  void;  and  that  part  of  it,  which,  standing  by  itself, 
need  not  have  been  in  w^riting,  cannot  be  enforced.'  But,  if  the 
part  void  by  the  statute  is  a  separate  and  distinct  part  of  the  agree- 
ment, and  the  otlier  ]iart  forms,  of  itself,  an  entire  and  distinct 
agreement,  then  the  part  only,  which  is  void  by  the  statute,  will  be 
invalid.'' 

(a)  1  Wils.  Rep.  305.  (e)   1  Johns.  Ca.  205. 

(h)  17  JolMis.  Rep.  113.  (S)    1  Johns.  Ca.  205;  3  Ifar.  and  Mcncn.451. 

(c)  10  Jolms.  Rep.242;  IS  En:,'.  C.  L.  Rep.  333.  (h)  12  Johns.  Rep.  291. 

(d)  2  Johns.   Ca.   52;   12  Mass.   Rep.  297;  4  (i)  7  T.  R.  201. 

Wend.  Rep.  657.  (k)  Thcoh.  I'r.  and  Su.  273. 


§2,  3.]  GUARANTY.  325 


Sec.  III. OF  THE  CONSIDERATION  FOR  THE  PROMISE  OF  THE  SURETY. 

It  has  already  been  mentioned,  that  all  contracts  and  promises, 
whether  written  or  verbal,  must  be  founded  upon  some  considera- 
tion, or  they  are  not  binding.  What  is  a  sufficient  consideration, 
has  also  been  stated.(l) 

What  would  be  a  sufficient  consideration  in  any  other  species  of 
contract,  would  also  be  sufficient,  where  the  promise  is  to  answer 
for  the  debt,  default,  or  miscarriage  of  another.* 

It  may,  perhaps,  be  proper  to  here  state,  that  when  a  person  signs 
a  note  or  other  contract  with  another,  as  surety,  no  inquiry  can,  in 
general,  arise,  as  to  the  consideration  between  the  surety  and  the 
person  in  whose  favor  the  note  or  contract  is  made.  Every  one 
knows  that  such  contracts  are  of  daily  occurrence,  and  binding  on 
the  surety. 

Where,  therefore,  a  guaranty,  or  promise  to  pay  the  debt  of  an- 
other, is  made  at  the  same  time  with  the  contract  to  which  it  is  col- 
lateral, it  is  incorporated  with  the  original  transaction,  and  becomes 
an  essential  branch  of  it;  the  w^iole  is  one  single  bargain;  and  the 
want  of  consideration,  as  between  the  plaintiff  and  the  guarantying 
party,  cannot  be  alledged.^ 

The  question  in  relation  to  the  consideration  of  the  promise  of 
the  surety,  arises  in  general,  where  the  surety  enters  into  an  agree- 
ment distinct  and  separate  from,  and  subsequent  to  that  of  the  prin- 
cipal, with  his  creditor. 

If  A  executes  his  note  to  B;  and  C,  at  the  time  the  note  is  made, 
indorses  his  name  on  the  back  of  it,  he  thereby  becomes  surety  tor 
A,  the  same  as  if  he  signed  his  name  to  the  note  with  A;  and  con- 
sequently, there  is  a  sufficient  consideration  lor  his  promise.'^  But 
if  A  executes  his  note  to  B,  and  C,  having  no  concern  with  the  note 
at  the  time  it  is  made,  afterwards  indorses  his  name  on  the  back  of 
it,  he  can  only  be  made  liable  to  the  extent  that  was  intended  by 
the  indorsement;  and  is  not  liable  at  all,  unless  there  was  a  sufficient 
consideration  therefor.*^ 

If  the  promise  of  the  surety  is  founded  on  something  already 
done  and  passed,  as  on  account  of  further  time,  already  given,  to 
pay  the  debt  of  the  principal,  or  the  like;  such  by-gone  considera- 
tion is  not  good:  and  a  promise  afterwards,  founded  upon  it,  alone, 
is  void;  unless,  indeed,  such  consideration  arose  from  the  request 
of  the  surety,  in  which  case  it  will  be  good.  But,  if  the  promise  of 
a  surety,  to  answer  for  the  debt  of  a  third  person,  be  made  in  con- 
sideration of  something  to  he  done;  (as,  in  consideration  of  goods 
to  be  supplied,  or  credit  to  he  given  to  such  third  person,)  the  con- 
sideration is  good  and  valid.® 

(a)  1!  Eng.  C.  L.  Rep.  56;  per  Best,  0.  J.  (d)  8  Pirk.  Rep.  423;  5  Mass.  Rep.  361;  7 

(b)  8  Johns.  Kep.  23,  aiul  32,  vote.  id.  233. 

(c)  8  rick.  Rep.  122;  3  M;iss.  Rep.  274;  11  i«l.  436.     (c)  Tlicobold  Priii.  and  Su.  7. 

(1)  See  pa^e  485. 


32G  GUARANTT.  [Pj't.  2,  Title  19, 

A  past,  or  liy-^one  consideration,  hoing  insufficient  of  itself,  it 
follows,  that  if  a  person  promise  to  answer  for  the  debt  of  another, 
when  sucli  debt  existed  prior  to  the  ])roinise,  something  new  must 
take  place  to  constitute  a  consitleiation  for  such  promise  of  the 
surety;  and  this  may  be  cither  a  harm  or  an  inconvenience  to  the 
creditor,  or  a  benefit  to  the  debtor,  or  to  the  surety.*  Thus:  A  sues 
me,  and  B  promises  A  to  be  responsible  for  the  debt  and  costs,  if 
he  will  direct  the  sheriff  not  to  serve  the  summons;  such  direction 
will  constitute  a  sufficient  consideration  for  the  promise  of  B."^ 

These  rules  will  be  further  illustrated  in  the  next  section. 


Sec.  IV. WHAT  IS  A   SUFFICIENT  AGREEMENT  IN  WHITING,  UNDER  THE 

STATUTE. 


The  agreement,  or  some  note  or  memorandum  thereof,  must  be 
in  writing.  The  instrument  must,  of  itself,  contain  sufficient  to 
show  a  promise  to  pay  the  debt  of  another.  The  following  wri- 
ting was  held  sufficient:  '•'•I  guaranty  tlie  payment  of  any  goods 
which  .T.  S.  delivers  to  J.  N.  (Siirnrd)  A.  L,"  The  consideration 
appears  on  the  face  of  the  instrument  to  be,  that  J.  S.  should  give 
N.  credit  for  goods,  which  would,  of  course,  be  a  benefit  to  the 
latter.*^  So,  the  following  was  holden  to  be  a  sufficient  agreement; 
and  that  the  apparent  consideration  was  a  further  supply  of  arti- 
cles on  credit:  "I  hereby  guaranty  the  present  account  of  Miss 
M.  Mosely,  due  to  R.  S.  Shortridge  &  Co.,  of  £ll2;  and  what  she 
may  contract  from  this  date  to  the  30th  of  September  next.  {Sign- 
ed) J.  Wood."'^ 

But  a  letter,  amounting  merely  to  an  offer  to  guaranty,  is  not 
sufiicient,  unless  it  be  accepted;  simply,  because  it  requires  the  as- 
sent of  t\yo  minds  to  make  a  contract;  and  «??,  qlfe)'  to  promise^  un- 
less accepted,  amounts  to  a  mere  proposition.  Thus:  an  action 
was  brought  on  the  following  letter,  to  the  plaintiff,  from  the  de- 
fendant: ''You  will  be  perfectly  safe  in  crediting  Messrs.  A.  &  Co. 
for  £4000;  indeed^  I  have  no  objection  to  guaranty  you  against  any 
loss  fro.m  giving  them  this  credit."  The  plaintiff  did  not  inform 
the  defendant  until  long  afterwards,  and  subsequent  to  the  failure  of 
A.  &  Co.,  that  he  intended  to  accept  the  guaranty;  and  failing  to 
prove  the  subsequent  consent  of  the  defendant  to  the  guaranty,  it 
was  held  not  to  be  binding  upon  him.  But  if  the  plaintiff",  within  a 
reasonable  time  al\er  he  gave  the  credit  to  A.  &  Co.,  had  notified  the 
defendant  that  he  accepted  the  guaranty,  it  would  have  been  bind- 
ing.* For  the  same  reason,  the  following  let'er,  written  by  the  de- 
fendant, is  not  sufficient,  unless  the  plaintiff  show  that  he  accepted 
the  ofier:  "  1/iave  no  objection  to  guaranty  the  payment  of,"  &c.s 

(ft)  2H.  Bl.  312;  4Taunt.  611;  11  Eng.  C.L.         (d)  7  En?.  C.  L.  Rep.  415;  15  Ves.  287. 
Rep.  54.  (e)  1  M.  and  S.  557. 

(b)  2  H.  ni.  312.  (g)  3  Eng.  C.  L.  Rep. 388. 

(c)  1  Campb.  242;  9  East,  348. 


§4.]  GUAllANTY.  327 

In  general,  a  party  giving  a  letter  of  credit  or  guaranty,  has  a 
right  to  know  whether  it  is  accepted;  and  whether  the  person  to 
whom  it  is  addressed  means  to  give  credit  on  the  footing  of  it,  or 
not;  and  whether  the  advances  are  pvuictually  paid.  It  may  regu- 
late, in  a  great  measure,  his  course  of  conduct,  and  his  exercise  of 
vigilance  in  regard  to  the  party  in  v/hose  favor  it  is  given.  In  gen- 
eral, tiierefore,  the  guarantor  will  not  be  hound  in  such  cases,  un- 
less the  person  to  whom  the  letter  is  addressed,  gives  him  notice 
within  a  reasonable  time,  not  only  of  the  advances  made  on  the 
faith  of  the  guaranty,  but  of  a  demand  upon  the  debtor,  and  his 
non-payment  of  the  advances.* 

If  a  third  person,  not  a  party  to,  or  holder  of  the  Instrument,  give 
his  name  to  a  note  previously  made,  by  indorsing  or  signing  his 
name  on  it,  his  engagement  is  collateral,  and  he  only  guaranties 
that  the  maker  will  pay.  But  if  such  third  person  indorse  or  sign 
his  name  to  a  note  at  the  time  it  is  made,  without  stating  the  extent 
of  his  responsibility,  he  may  be  treated  as  a  surety,  and  bound  in 
like  manner  as  if  he  signed  as  principal  with  the  maker,  and  the 
blank  indorsement  may  l;o  filled  up  so  as  to  thus  bind  him,  or  the 
court  will  regard  it  as  so  filled  up.  In  cases  of  blank  signatures  of 
this  kind,  parol  testimony  is  admissible,  to  show  the  intention  of 
the  parties  as  to  the  extent  of  liability,  and  to  repel  the  above  men- 
tioned legal  presumptions  against  such  indorsers.''  The  above 
rules  as  to  indorsers,  are  only  applicable  where  a  third  person,  who 
neither  holds  the  note  nor  transfers  it,  indorses  or  signs  it  in  blank. 

A  written  promise,  howevei',  filled  up  at  the  time  of  the  contract, 
cannot  be  made-  out,  its  defects  supplied,  or  its  terms  changed,  by 
proof  of  any  verbal  understanding  between  the  parties;  for  this 
would  be  attended  with  all  the  evils  which  the  statute  was  intended 
to  remedy.(l)  Indeed,  courts  in  other  States,  where  they  have  a 
similar  statute,  have  decided,  that  not  only  the  promise  must  be  in 
writing,  but  the  consideration  upon  which  the  promise  was  made, 
must  so  fiir  appear  upon  the  face  of  the  agreement,  that  from  it  the 
consideration  for  the  promise  may  be  fairly  inferred,  or  the  agree- 
ment will  be  void,  although  there  was  in  fact  a  good  consideration.(2) 

(a)  7  Pet.  U.  S.  Rep.  113;  7  Cranch  69;  5  Pet.  U.  S.  Rep.      (b)  7  Mass.  R.  233;  8  Pick.  Rep.  423; 
624;  2  Oliio  R.  439;  1  South.  178;  12  Pet.  503.  2  Oliio  Rep.  430;  9  Id.  139. 

(1)  The  case  of  Grant  vs.  Nuylor,  4  Crancb,  224,  decided  by  Cliief  Justice 
Maiisiiall,  is  a  stronc^  one.  A  letter  of  credit  was  addressed  hy  mistake  to  .John 
and  Joseph  Naylor,  aiul  delivered  to  John  and  Jerctitiah  Naylor,  who  furnished 
goods  upon  the  (ailh  of  Uie  letter.  T!iey  were  not  permitted  to  sliow  that  the 
letter  was  intended  to  be  addiessed  to  them,  and  consequeiitly  the  writer  of  the 
letter  was  held  not  to  be  responsible  to  them.  So,  in  an  action  by  the  assig'nee  of 
a  bond  not  negotiable  against  the  assignor,  upon  a  written  assignment  in  general 
terms,  whicii  did  not  mention  a  guaranty,  parol  testimony  is  not  admissible  to  show 
that  the  defendant  had  expressly  guarantied  tiie  payment.   4  Dull.  340.      See  ]).  84. 

(2)  In  England  and  New  York,  tiie  rule  in  tiie  text  has  been  adopted.  In  Mas- 
sachusetts, it  is  iield  that  tlie  agreement  is  binding  tbo\igh  the  consideration  does 
not  appear  upon  the  face  of  tiie  agreement.  Sec  17  Muss.  Jiep.  122,  where  the 
cases  are  reviewed.  I  am  not  aware  tliat  the  supreme  court  of  Ohio  have  settled 
the  question,  unless  by  the  case  of  Green  vs.  l)v(hj,e,  el  ah,  2  Oltlo  Jirp-  430.  I  do 
not,  however,  understand  that  case  as  deciding  any  thing  in  relation  to  this  subject 
except  that  the  consideration  for  the  guaranty  must  be  set  forth  in  the  declaration. 


3f}8  GUARANTY.  [Pit.  2,   Til.  19, 

Therefore,  a  letter  from  the  defendant  to  tlie  plaintiff,  in  the  follow- 
ing words:  —  "As  you  have  a  cUiim  on  my  brother  for  £5, 175.  for 
boots  and  shoes,  I  hereby  undertake  to  pay  you  the  amount  within 
six  weeks  from  this  day,"  was  liolileu  not  to  satisfy  the  statute;  no 
consideration  appearing  in  the  letter  irom  its  exj)ress  words,  and 
none  could  with  certainty  be  implied,  from  the  terms  used.'' 

Sec.  V. OF  THE  EXTENT  OF  THE  CONTRACT  OF  SURETY. 

When  a  person  is  surety  for  the  fidelity  of  another,  in  an  office 
of  limited  duration,  or  the  a])pointment  to  wiiich,  is  only  for  a  lim- 
ited period,  he  is  not  obliged  beyond  that  ])criod,  though  the  officer 
should  be  re-elected,  or  ag;un  appointed.'' 

In  general,  if  the  debt  bears  interest,  the  surety  is  liable  for  the 
interest. 

When  the  surety  has  given  bond,  he  is  not  liable  beyond  the 
penalty  of  the  bond.'^ 

On  a  guaranty  in  these  words,  indorsed  on  a  note,  "I  guaranty 

the  collection  of  this  note  to  G II ,"'  the  guarantor  is  not 

liable  until  after  the  holder  has  endeavored  to  collect  the  money 
from  the  makers;  it  is  the  same  as  a  guaranty,  that  the  note  is  Col- 
lectable by  due  course  of  law.  An  assignment  in  these  words — "I 
assign  and  guaranty  the  payment  of  the  within  note  to  A,  or  bear- 
er,'"'' renders  the  assignor  liable  to  pay  the  note  when  due,  without 
even  a  demand  upon  the  maker,  or  notice  to  the  assignor  of  non- 
payment,^ there  being  in  the  terms  of  the  assignment  an  absolute 
and  unconditional  promise  that  the  note  shall  be  paid.  When,  how- 
ever, a  claim  is  so  assigned  as  to  make  the  assignor  conditionally 
liable  either  for  the  original  debt,  for  the  payment  of  which  the 
claim  was  assigned,  or  conditionally  liable  upon  the  assignment  it- 
self; the  assignor  will  be  discharged  from  all  liability  if  the  assignee 
neglect  or  delay,  to  the  injury  of  the  assignor  and  for  an  unreason- 
able time,'  to  demand  payment  of  the  person  from  whom  the  claim 
assigned  is  due.  But  the  assignee  is  not  in  general  bound  in  such 
case  to  observe  the  same  promptness  as  is  required  upon  a  negotia- 
ble instrument  (in  regard  to  a  demand)  in  order  to  make  the  assign- 
or liable;  nor  need  the  assignee  sue  such  debtor  before  he  proceeds 
against  the  assignor,  unless  that  was  the  understanding  or  agree- 
ment upon  which  the  assignment  was  made.^ 

Sec.  YI. —  now  the  surety  may  be  discharged  by  the  acts  of  the 

CREDITOR. 

If  the  person  to  whom  the  debt  is  due  receive  a  part  from  the 
principal,  in  discharge  of  the  whole  debt,  or  release  the  debt, 
this  will  discharge  the  surety.''      So,  the  surety  is  discharged,  if 

(a)  27  End.  C.  L.  Rep.  280.  320.  565;  23  Id.        (e)  20  Johns.  Rep.  365. 

392,  n.  '.a).  (g    7  Pel.  U.  S.  Rep.  128;  2  Ohio  Rep.  439;  12 

(b)  2  Saunii.  Rep.  403;  7  Wlica.  720;  2  Ohio  I'nt.  503. 

Rep.  334;  2  Dever.  489.  (li)  10  Eiiz.  C.  L.  Rep.  393;  2  Swanst.  539. 

(c)  3  Cowen's  Kcp.  151.  (tl)  1  Wend.  457;  4  Cow.  Kcp.  173. 


§5,  6.]  GUARANTY.  329 

without  his  consent,*  a  new  bargain  or  agreement  is  made,  chang- 
ing the  contract  or  its  mode  of  performance.''  It  is  not  sufficient 
that  he  may  sustain  no  injury  by  a  change  in  the  contract;  or  that 
it  may  even  be  for  his  benefit.  He  has  a  right  to  stand  upon  the 
very  words  of  the  contract;  and  if  he  does  not  assent  to  any  varia- 
tion of  it,  and  a  variation  be  made,  it  is  fatal. "^ 

It  is  the  duty  of  the  party  to  whom  the  surety  is  bound,  to  put 
him  in  possession  of  all  the  facts  likely  to  afiect  his  liability.  If  he 
does  not,  or  if  he  conceals  from  the  surety,  facts  which  increase  his 
risk,  it  will  amount  to  a  fraud,  and  discharge  the  surety.*^ 

A  surety  gave  a  guai^anty  to  A,  for  a  certain  amount  of  goods  sold 
to  B;  and  by  a  secret  agreement  between  A  and  B,  the  latter  con- 
sented to  pay  ten  shillings  per  ton,  beyond  the  market  price  of  the 
goods,  in  satisfaction  of  an  old  debt  due  the  former;  it  was  holden 
by  the  court,  that  this  secret  agreement  was  a  fraud  upon  the  guar- 
antoi-,  and  discharged  him  from  all  liability.  The  effect  of  this  ar- 
rangement was  to  compel  the  buyer  to  appropriate  to  the  payment 
of  the  old  debt,  a  portion  of  those  funds  which  the  surety  might 
reasonably  suppose  would  go  towards  defraying  the  debt,  for  the 
payment  of  which,  he  made  himself  collaterally  responsible.^ 

So,  the  surety  will  be  discharged  if  the  creditor,  without  the  con- 
sent of  the  surety,  agree  to  give  further  time  to  the  principal  debtor 
to  do  the  act,  or  pay  the  debt.^  But  such  agreement  must  be  found- 
ed, like  every  other,  upon  a  valid  consideration,  and  must  suspend 
for  some  definite  time,  (though  but  for  an  hour,)  the  right  of  the 
creditor  to  sue  the  principal  debtor.(l)  It  is  proper  to  add,  that 
such  agreement,  though  it  entirely  discharges  the  surety,  does  not 
affect  the  ultimate  liability  of  the  principal  debtor. 

The  surety  upon  a  bond,  note,  or  bill  of  exchange,  is  discharged, 
if  the  holder  of  the  instrument  does  not  promptly  prosecute  the 
principal  debtor  to  final  judgment  and  execution,  after  he  has  re- 
ceived written  notice  to  do  so,  from  the  surety,  or  his  representa- 
tives.^ Such  notice  and  failure  to  prosecute,  will  not  discharge  the 
surety  upon  a  bond  of  a  guardian,  executor,  or  administrator,  or 
public  officer;  nor,  if  the  conditions  of  the  bond  are  to  perform 
some  collateral  act,  other  than  the  payment  of  money,  or  the  deliv- 
ery of  property.^  No  other  notice  but  one  in  writings  will  satisfy  the 
terms  of  the  statute,  or  be  binding  on  the  holder  of  the  instrument,* 

Where  the  creditor  has  obtained  the  obligation  or  signature  of  a 
surety,  and  takes,  at  that  time  or  afterwards,  property  from  the 
principal  debtor  as  a  fiu-ther  pledge  or  seciu'ity  for  his  debt,  he  must 
hold  such  property  fairly  and  impartially  for  the  benefit  of  the  sure- 

(a)  5  Oliio  Rpp.274.  (e)   10  Knsj.  C.  I-.  I?ep.  197. 

(b)  n  En?.  C.  L,  Rpp.269:  3  Mn.ld.  Rnp.221.  (t!)  <!  Ohio  Rep.  17:  .t  M.  207. 

(c)  9  Wliesi.  680;  3  Wash.  r,.C.  licp.  TO.  (h)  Stat.  877.  878.  $1  and  2, 

(d)  Chilly's  Con.  226,  (3rf.  Ed./,  Story's  Equity ,  222.  (i;  7  Ohio  Rep.  72. 

(1)  7  Ohio  Rep.  72;  15  Enp;.  C.  L.  Rep.  126;  .5  Wmd.   Rep.   501.     See  Title 

31,  where  the  reason  of  tlii.s  rule,  mid  its  apphcation,  arc  more  fully  explained. 

42 


330  GUARANTY.  [Frt.  2,  Tttk  10, 

ty,  as  well  as  himself;  and  if  he  parts  with  it  without  the  know- 
ledge, or  against  the  will  of  the  surety,  he  shall,  in  general,  lose  his 
claim  ngainst  the  surety,  for  the  amount  of  the  property  so  surren- 
dered.* 


Sec.    VII, OF  THE  RIGHT  AND  RKJIEnV  Ol'  THE   SUUETF    AGAINST    HIS 

PRINCIPAL. 

If  the  principal  lail  to  pay  the  debt  When  it  becomes  due,  and  tlic 
surety  pay  the  whole  without  suit,  he  may  sue  the  principal,  in  an 
action  of  assumpsit,  for  so  much  money  paid  out  for  him,  witiiout 
notice  to,  or  demand  of  the  principal.''  But  the  payment  of  small 
sums' at  diderent  times,  does  not  give  a  right  of  action  against  the 
princi])al  for  each  separate  paym-ent,  unic:3s  there  has  been  a  previ- 
ous notice  to,  or  demand  of  payment  of  him.''  Atihe  common  law, 
and  before  any  statute  upon  the  subject,  a  surety  ^had  no  action 
against  his  principal  until  such  surety  had  paid  the  money, '  But 
now,  by  statute,*^  when  judgment  has  been  rendered  against  the 
surety  for  the  debt  of  the  ])rincipal,  he  may  immediately  sue  out  a 
stnnmo7is^  ngumsi  the  principal  debtor,  and  upon  production  of  the 
transcript  of  such  judgment,  and  proper  proof,  will  be  entitled  to  a 
judgment.  No  appeal  can  be  had  from  this  judgment;  and  the  stay 
o^'^xecution  must  be  for  such  a  time,  that  it  will  expii'e  one  month 
■sooner  than  that  allowed  to  the  surety,  upon  the  judgment  against 
him.^  -  . 

When  a  judgment  has  been  rendered  against  the  principal  debtor, 
and  the  bail  have  been  compelled  to  pay  the  amount  of  such  judg- 
ment, or  any  part  of  it,  the  justice  may,  at  the  request  of  such  bail, 
issue  a  scire  facias  against  the  principal  debtor,(l^  and  try  and  de- 
termine the  cause  as  in  other  cases.  No  stay  of  execution,  is  in 
such  case,  allowed.^  If  the  defendant  resides  in,  or  has  removed 
to  another  township  or  county, 'Sp  may  be  there  sued  by  scire  facias, 
upon  a  transcript  of  the  judgn'rtmt,'* 

When  sureties  proceed  against  their  principal  before  they  have 
actually  paid  any  thing,  they  must  follow  the  course  directed" 
by  the  statute,  above  referred  to.  Where  there  are  joint  sureties, 
and  a  joint  judgment  against  them,  they  must  proceed  under  the 
statute  jointly,  and  cannot  sue  separately,'  But  sureties  paying  the 
money  for  their  principal,  should  yet  sue  him  separately  for  the 
money  paid."^     Where,  however,  the  m.oney  which  two  or  more 

(a)  4  Johns.  Cliv.  Rep.  123;  8  Pick.  Uep.  129,  (b)  5  Ohio  Rep.  445. 

per  Parker  C.  J.;  2  Cox.  86.     Tl'at  this^  (cl  Slat.  877. 

princple  is  applicable  at  law,  as  well  as  in  (d)  Id.  647. 

equity,see7  Jo;ins.Rep.337;2Ves.J.542;  (e)  Id.  87!!,  $5. 

2  Pick.  Rep.  223.     The  court  in  the  case  In  (?)  Id.  879,  $6. 

8  Pick.  Rep.  122,  express  a  doubt  whctlier  (h)  Id.  ib.  §7. 

a  surety  can  set  up  this  ciiuiiable  defence  (i)  2  Ol  io  Rep.  209. 

when  be  and   liis  princii)al  arc  sued  in  a  (k)  8  Cow.  Rep.  168. 
joint  action. 


(1)  The  scire  facias  can  be  readily  made  out  from  the  form  g-iven  on  page  135. 


§7,   8.]  GUARANTV.  331 

sureties  pay  for  the  principal,  is  raised  on  their  joint  credit,  they 
m~y'  perhaps  sue  for  re-imbursement,  by  a  joint  action  against  the 
principal.* 

A  surety  extiiaguisliing  a  debt  by  payment  of  less  than  its  amount, 
is  only  entitled  to  recover  the  amount  actually  paid. 

"V-Zhese  a  surely  is  compelled  to  pay  the  whole  debt,  he  may  re- 
cover it  in  an  action  foriitoney  paid,  Avithout  any  request  or  pro- 
miss  on  the  part  of  the  principal,  for  the  law  implies  a  promise  by 
the  latter,  to  indemnify  the  surety.     '     " 

^here  is  nothing  in  the  statute  above  referred  to,  by  which  it  con 
be  as«ertaincd,  whether  the  surety  may  recover  the  costs  of  the 
suit  against  him,  from  the  principnl.  In  general,  a  surety  should 
pay  v/Itiiout  suit^  'If  it  subserves  his  interest  and  convenience,  to 
delay  payment  by  defendiug-a  suit  against  him,  he  ought,  to  pay  the 
expense  arisipg  from  his  adoption  of  that  course.  Sureties,  there- 
fore, cannot,  in  general,  recover  from  their  principals  the  costs  and 
expenses  of  delending  actions  brought  against  them.''  It  seems, 
howevci"^,.  that  M  a  person  who  has  become  party  to  a  negotiable 
note,  or  bill  of  exchange,  for  the  accommodation  of  the  maker  or 
drawer,  be  sued,  he  fnay  recover  from  the  maker  or  drawer,  the 
costs  of  sucti  suit.'^(l,)  I  do  not  perceive  why  this  rule  is  not 
equally  applicable  to  all  cas6s,  where  the  surety  has  entered  into 
the  contract,  solely  for  the  accommodation  and  benefit  of  the  prin- 
cipal; and  that  therefore,  surety  for  the  stay  of  execution,  and  the 
surety  of  a  constable  and  the  like,  may  recover  from  their  principal, 
the  costs  to  which  they  have  been  subjected  by  the  suit  against 
them.  ^^ 

Bail  may  recover  from  the  principal  any  expenses  he  naay  have 
reasonably  incurred  in  taking  him  into  custody,  for  the  purpose  of 
surrendering  him. 

Sec.  VIII.  —  OF  contricution.  • 

The  claim  of  contribution  takes  place  when  one  of  several  sure- 
ties has  paid  the  whole  debt,  or  more  than  his  share,  in  proportion 
to  the  number  of  sureties.  In  such  case,  he'  mny,  after  demand, 
.sue  the  other  sureties  for  such  proportion  as  will  make  the  loss 
equal.  When  any  of  the  sureties  are  insolvent,  the  division  is 
made  in  chancery,  among  those  who  are  solvent.  Thus,  when  one 
of  three  siu^eties  has  paid  the  whole  debt,  he  is  allowed  a  half  from 
his  co-surety,  if  the  third  is  insolvcnt.''(2)  Where,  however,  one 
has  been  induced  to  become  surety  at  the  instance  of  his  co-surety, 
though  he  thereby  renders  himself  liable  to  the  person  to  whom 

(a)  3  Crennl'f.  107;  5  Knst,  225;  but  sec  5  Eap,  Ent;.  C.  L.  Hep.  f?38;  Hammond's  Tlieob. 

104;  8  Cow.  IBS.  (c)  16 'Johns.  Rep.  70. 

(Jj)   16  Jolins.  Rep.  70;  17  Rng.  C.  L.  Rep.  457;  (<1J  1  Vcrn.  456;  1  Clia.  Ca.  34.  696. 

9  Johns.  Rep.  131.    4  Taunt.  401;  19. 


(1)  As  to  what  is  accommodation  paper,  see  Title  31. 

(2)  Tliis  is  tlie  rule  in  clianccry,   but  whetlicr  courts  of  law  would  recognize 
the  same  rule,  is,  perhaps,  doubtful.     See  13  Evg.  C.  L.  Hep.  294. 


332  ouaraNty.  [p7t.  2,  Titk  19.] 

security  is  given,  he  is  not,  in  general,  liable  to  contribution  to  the 
co-surety,  at  whose  instance  he  became  a  surety;  unless  there  was 
an  understanding  or  agreement  that  he  should  be  so.* 

Sureties  are  not,  in  general,  entitled  to  contribution  for  the  costs 
or  expenses  of  defending  the  action  brought  against  them,  unless 
jointly  sued.''(l)  Where  a  note  was  made  by  tlie  principal  and  his 
sureties;  and  a  third  person,  before  the  note  was  negotiated,  indors- 
ed his  name  to  a  guaranty  on  the  back  of  it,  thus  —  ''•I  consider 
myself  holden  as  guaranty  for  this  note;"'  4t  was  holden,  that  so 
far  as  the  guarantor  was  concerned,  the  sureties  to  the  note  were 
in  ellect  ))rincipals,  and  consc(juently,  that  the  sureties  who  paid  the 
note,  could  not  compel  the  guarantor  to  contribute  or  relund  to 
them  any  portion  of  the  money  paid.*^  If  you,  as  surety  for  A, 
exec-ute  a  note  or  other  instrument  with  him  to  B,  jointly  and  sev- 
erally promising  to  pay  B  the  amount,  and  B  sues  A,  separately,  on 
the  instrument,  (as  we  have  seen  he  may  do,)'^  and  recovers  judg- 
ment, and  A  gives  security  for  the  stay  of  execution,  and  the  surety 
for  the  stay  is  compelled  to  pay  the  judgment,  it  is  believed  that 
such  surety  for  the  stay  cannot  recover  from  you,  but  that  you  are 
discharged. "^  If,  however,  you  had  been  jointly  sued  with  A,  and 
judgment  and  stay  of  execution  were  had,  ancl  the  surety  for  stay 
paid  the  judgment,  you  would  be  liable,  witli  A,  to  the  surety,  for 
the  whole  amount  of  the  judgment.  So,  when  a  note,  or  other 
instrument,  is  made  by  principal  and  surety,  ami  the  principal  be- 
ing alone  sued,  his  special  bail(3)  are  compelled  to  pay  the  money, 
the  surety  are  not  responsible  to  the  special  bail  for  any  part  of 
the  money."*  ,^^' 

(a)  2  Esp.  478;  15  Eng.  C.  L.  Rep.  333;  Tho.  (b)  See  16  Jolins.  Rep.  70;  17  Enc-  C.  L.  Rep. 

Pr.  and  Su.  26H.  457;  9  Johns.  Kep.  131;  4  Taunt.  464; 

(c)  10  Pick.  Rep.  121;  13  Wend.  400.  19  Eng.  C.  L.  Rep.  3.J8;  2  Wend.  481; 

(d)  See  3  Ohio  Rep.  33.  14  Eng.  C.  L.  Rep.  393. 


(1)  See  page  331. 

(2)  See  pag-e  19. 

(3)  6'peciul  bail  is  tlie  bail  taken  for  the  appearance,  &.c.  of  the  defendant, 
when  sued  by  a  capias  ad  respondendum.  For  tlie  form  of  the  recognizance,  &c. 
in  such  cases,  before  a  justice,  see  pages  51  and  52. 


TITLE  XX. 


GUARDIAN  AND  WARD. 

The  relation  of  guardian  and  ward,  is  nearly  allied  to  that  of 
parent  and  child.  It  applies  to  children  during  their  minority,  and 
may  exist  during  the  lives  of  the  parents;  but  usually  takes  place 
on  the  death  of  the  father,  and  the  guardian  is  intended  to  supply 
his  place.  If  an  infant  have  property  and  no  guardian,  neither  the 
parent,  nor  any  other  person  can  act  for  him,  in  relation  to  such 
property. 

The  power  of  a  guardian,  appointed  for  a  male  under  fourteen, 
ceases  entirely,  upi^n  his  arriving  at  that  age;  and  the  power  of  a 
guardian  for  a  fenlale  also  cetises,  upon  her  arrival  at  the  age  of 
twelve  years.  The  guardian,  after  that  time,  has  no  more  power 
than  if  he  had  never  been  appointed.^  The  minor  then  chooses  a 
guardian,  or  the  court  appoints  the  same  one,  or  another.^ 

The  guardian  appointed  for  a  male  over  fourteen  years  of  age, 
unless  removed,  continues  to  act  as  such  until  the  minor  arrives  at 
the  age  of  twenty-orfe  years. 

If  the  minor  is  a  female,  and  over  twelve  years  of  age  when  the 
guardian  is  appointed,  his  power  ceases  whenever  the  minor  mar- 
ries*^ a  person  of  full  age,  or  arrives,  herself,  at  the  age  of  eighteen 
years. "^ 

The  guardian  has  a  control  over  the  person  and  property  of  his 
ward.  He  may  lease  the  real  estate  for  the  time  of  his  guardian- 
ship, but  no  longer.* 

He  may  bring  an  action  of  trespass  in  his  own  name,  for  injuries 
done  to  his  ward's  land.^  If  he  execute  a  note  or  contract  as  guar- 
dian, he  must,  in  general,  be  sued  in  his  own  name,  and  not  as 
guardian;  even  though  he  describe  himself  in  the  note  or  contract 
as  guardian.*^  Judgment  is  in  general  rendered,  and  execution  is 
issued  against  him,  in  his  individual  capacity,  and  not  as  guardian. 
His  own  personal  property  will  be  liable  to  satisfy  such  execution. 

We  shall  have  occasion  hereafter  to  point  out  the  mode  in  which 
infants  sue,  and  are  sued,  for  injuries,  and  upon  contracts  entei-ed 
into  by  them.(l) 

(a)  Wrislu's  Rep.  119.  (c)  1  Johns.  Cliy.  Rep.  561. 

(b)  Stat.  431,  $G.  («?)  Tiac.  Ab.  Title  Goardian,  (G);  5  Jolina.  Rrp.  g<5. 

(c)  Bac.  Ab.  Titli  Gdardiam,  (E).  (li)  5  Maw.  Eep.  299;  6  id.  58;  17  Serg.  (f  E.  174. 

(d)  Stat.  438. 


(1)  See  Parts,  Title  S3. 


334  ouARDiAN  AND  WARD.  [Prt.  2,  Title  20.] 

A  guardian  has  no  authority  whatever  to  receive  money  for  his 
ward,  after  his  term  of  service  has  expired;  nor  have  the  executors 
or  administrators  of  the  guardian,  after  his  deccase."(l) 

The  guardian  of  a  female  under  twelve,  or  of  a  male  under  four- 
teen years  ol'age,  ca.nnot  bind  such  minor  until  majority,  by  inden- 
tures of  apprenticeship,  unless  the  terms  and  covenants  of  the  in- 
denture are  approved  by  the  court  of  common  pleas  of  the  proper 
county,  and  the  certificate  of  approval,  unUer  the  seal  of  the  court, 
with  the  signature  of  the  clerk,  is  aUached  to  the  indentures.''  The 
guardian  of  minors,  appointed  after  their  arrival  to  the  respective 
ages  last  mentioned,  may  bind  his  wards  by  indentures,  without 
obtaining  such  certificate.*^ 

(a)  Wright's  Kep.  119;  Bac.  Ab.  Tll!e  Glahdian,  (E).  (c)  Stat.  63. 

(b)  Siai.  432,  $7. 


(1)  Tlie  gmnllan's  duty  is  one  (;f  oblig'ution,  not  of  speculation  and  profit.  He 
cannot  reap  any  benefit  from  tlie  use  of  llic  wiird's  monej'.  If  he  settles  a  debt 
upon  beneficial  terms,  or  purcbases  it  at  discount,  the  adyantage  is  to  accrue  en- 
tirely to  tlie  infant.  If  he  nf-j^lect  to  put  the  ward's  money  at  interest,  and  negli- 
gently and  for  an  V'U'eiisonable  time  sufier  it  to  be  idle,  or  mingle  it  with  bis  own, 
the  court  will  charge  him  with  simple  interest,  and  in  cases  of  gross  delinquency, 
with  compound  interest.  The  guardian  cannot  convert  the  personal  property  of 
the  infant  into  real,  without  the  direction  of  the  court  of  chancery. 


TITLE  XXL 


HUSBAND  AND  WIFE;  AND  HEEEIN, 

SECTION  I.  OF   THE    RIGHT  V/HICH   THE    HUSBAND  ACQ,UIRES  IN  THE  PRO- 

PERTY   Oli'    THE    Vn?E;    AND    HEREIN, 

(A)  As  to  the  real  estate  of  tlie  wife. 

(B)  As  to  leases.,  and  the  li/cG.,  belonging  to  the  uiife. 

(C)  As  to  debts  due  the  wife. 

{D)  As  to  the  personal  property  of  the  wife. 

IT.         THE    DUTIES    AND   LIABILITIES  WHICH  THE  HUSBAND  ASSUMES 
BT    THE    marriage;    AND    HEREIN, 

{A)  As  to  the  contracts^  (^-c,  of  the  wife.,  before  the 
marriage. 

(B)  When  he  is  liable  for  necessaries  fwnished  to 
her.,  and  tchen  not. 

(C)  As  to  crimes  and  injuries  committed  by  her. 

in.         OF  THE  POAVER  OF    THE    WIFE    TO    ACT    WITHOUT    HER    HUS- 
BAND. 

ir.        INCOMPETENCY    OF    TPIE    HUSBAND  AND  WIFE,  AS  WITNESSES. 
Y.  OF    ACTIONS    BROUGHT    P.T    THE     HUSBAND     AND     WIFE;      AND 

HEREIN, 

■    {A)   Where  they  must  join  as  plaintiffs. 

(B)  Where  the  husband  must  szie  alone. 

(C)  Where  the  wife  may  sue  alone. 

(D)  When  they  may  join  or  not.,  at  their  election. 

(E)  Who  must  sue  after  the  death  of  either  the 
husband  or  icife^  and  the  effect  of  their  death 
upon  suits  pending. 

VI.  OF  ACTIONS  AGAINST  THE  HUSBAND  AND  WIFE;  AND  HEREIN, 

(^4)   When  they  must  be  joined  as  defendants. 

(B)  Wlicn  the  husband  ?7iust  be  sued  alone. 

(C)  When  the  loife  may  be  sued  alone. 

(D)  Who  to  sue  upon  the  death  of  the  husband  and 
wife.,  and  Hie  effect  of  their  death  upon  suits 
pending. 

VII.  OF  THE  EFFECT  OF  IMPROPERLY   JOINING    OR    OMITTING    HUS- 

BAND OR  WIFE,  AS  PLAINTIFFS  OR  DEPENDANTS. 

VIII.  OF  THE  EFFECT  OF  THE   MARRIAGE  OF  A  FEMALE   UPON  SUITS 

TSr/^\:r,U"l  BY  OR  AGAINST  HER. 


336  HUSBAND  AND  WIFE.  [Prf.  2,  Titis  21, 

SrC.  I. OF    THE    RIGHT    WHICH    THE    HUSBAr?D  ACaUIRES    IN  THE  PRO- 

PKRTY  OK  THE  AVIFE. 

(A)  As  to  the  real  estate  of  the  ivife. 

If  she,  at  the  time  of  her  marriage,  have  an  estate  in  fee  simple, 
the  Inisband,  upon  the  marriage,  becomes  possessed  of  the  freehohl, 
and  takes  the  rents  and  profits,  wliile  they  botli  live.*  He  will, 
however,  hold  the  estate  during  the  life  of  the  wife  only,  unless 
they  have  a  child  born  alive;  in  which  case,  whether  the  child  live 
or  immediately  die,  the  husband  will  hold  the  estate  after  the  death 
of  the  wife,  and  during  his  own  life.  The  estate  afterwards  goes 
to  the  heirs  of  the  wife;  and,  if  the  wife  survive  the  husband,  she 
again  takes  it  in  her  own  right.  The  husband  acquires  the  rights 
above  mentioned,  in  land  which  comes  to  the  wife  during  the  mar- 
riage. 

The  separate  conveyance  by  the  husband,  of  the  lands  thus  held, 
will  vest  in  the  purchaser  as  good  a  title  as  the  husband  had,  and 
cannot,  therefore,  be  defeated,  until  the  wife  or  her  heirs  have  a 
right,  in  consequence  of  the  death  of  the  husband  or  wife,  to  claim 
the  lands,  as  above  mentioned.  The  crops  growing  on  the  land  at 
the  termination  of  the  husband's  estate,  go  to  his  tenant,  if  there  be 
one,  or  to  the  representatives  of  the  husband,  in  the  same  manner 
as  if  the  land  had  descended  to  his  heirs.*" 

If  the  husband  and  wife  lease  the  land,  and  he  die  before  the  ex- 
piration of  the  lease,  (the  wife  surviving  him.)  the  lease  will  not  be 
operative  against  the  wife  after  her  husband's  decease,  unless  she 
has  acknowledged  the  execution  of  the  lease  in  the  manner  pre- 
scribed by  statute. "^ 

If,  during  the  marriage,  lands  are  conveyed  to  the  husband  and 
wife,  the  wife  holds  an  undivided  half,  subject  to  the  life  estate,  &c. 
of  the  husband,  as  above  mentioned.^ 

(B)  As  to  leases^  and  the  lihc^  hcluvging  to  the  roife. 

The  husband,  upon  the  marriage,  becomes  possessed  of  the  chat- 
tels real  of  the  wife,  such  as  leases  for  years,  &c.;  and  the  law  gives 
him  full  power,  whether  she  consents  or  not,  to  sell,  assign,  mort- 
gage, or  otherw'ise  dispose  of  the  same,  as  he  pleases.^  But  he  can- 
not devise  them  by  w'xW-^  and  if  he  makes  no  disposition  of  them 
in  his  lifetime,  the  wife,  after  his  death,  will  take  them  in  her  own 
right.'  If,  therefore,  a  man  be  possessed  of  a  lease  for  forty  years 
in  right  of  his  wife,  and  they  grant  ten  years  of  it  to  another,  and 
the  husband  die,  the  residue  of  tlie  original  term  of  forty  years  will 
belong  to  her,  as  undisposed  of  by  her  husband.'*     But  this  differ- 

(a)  Co.  Liu.  351,  a.  {a)  Co.  Lift.  46,  b. 

(I);   Kent's  Com.  131.  (Ii)   Id.  3.51,  a. 

(d)  2  Kent's  Corn.  133;  7  Jolin's  Rep.  81;  6  Obio  (i)  4  Pcters(lorfl"'s  Ah.  34. 

Rep.  313.  (k)  Cro.  Eliz.  33;  2  P.  Wms.  1771. 

(e)  2  Ohio  Rep.  306;  Cond.  372. 


§1,(A),(B),(C).]  HUSBAND  AND  WIFE.  337 

ence  must  be  noted  between  the  choses  in  action,  of  the  wife,  and 
her  chattels  real;  that  if  the  husband  survive  the  wife,  her  chattels 
real  will  go  to  him  by  right  of  marriage;  but  her  choses  in  action 
will  in  such  case  go  to  her  heirs  and  legal  representatives,  unless  the 
husband  has  reduced  them  to  possession  in  the  manner  wliich  will 
now  be  mentioned.*^ 

(C)  As  to  debts  due  to  the  wife  by  bond,  note,  or  for  arrears  of 
rent,  legacies,  &:c.,  which  are  termed  choses  in  action:  these  do  not 
vest  in  the  husband,  by  the  mere  operation  of  marriage.  To  enti- 
tle himself  to  them,  he  must  first  reduce  them  into  possession,  by 
recovering  the  money,  or  by  altering  the  security,  as  by  making 
them  payable  to  himself  If  the  husband  dies  before  he  reduces 
them  to  possession,  the  wife  will  be  entitled  to  them,  and  may  sue  in 
her  own  right,  as  if  she  had  never  been  married. **  If  the  wife  die 
before  the  husband  has  recovered  the  debts  or  altered  the  security, 
the  money  arising  from  them  will  go  to  the  heirs  of  the  wife,  (and 
not  to  the  husband.)  subject,  however,  to  pay  those  debts  which  she 
contracted  before  the  marriage.(l)  The  husband  can  collect  and 
discharge  them  during  the  lifetime  of  his  wife;*=  and  payment  to, 
and  receipt  by  the  wife,  it  would  seem,  will  not  discharge  them, 
unless  the  circumstances  show  that  the  husband  did  or  hath  assented 
thereto.'^ 

If  the  husband  appoint  an  attorney  to  receive  a  debt  or  claim  due 
the  wife,  and  the  attorney  receive  it;  or  if  he  mortgage  the  claim 
or  debt,  or  assign  it  for  a  valuable  consideration,  or  recover  judg- 
ment by  suit  in  his  own  name,  or  if  he  release  it;  in  all  these  cases 
the  right  of  the  wife,  upon  the  decease  of  the  husband,  is  gone.* 
But  if  he  voluntarily  assign  it  without  consideration,  or  obtain  judg- 
ment in  the  name  of  his  wife  and  himself,  and  then  die,  she  may 
claim  the  judgment  or  debt  as  her  own;^  or,  if  she  then  die,  and  the 
husband  survive,  her  administrators  and  legal  representatives  will 
be  entitled  to  it.** 

(a)  Cro.EIiz.33;  2  P.  Wms.  1771.  (e)  3  Johns.  Chy.  Rep.  208;  2Atk.206;  1  Fonb. 

(b)  Com   Di-;.  Baroji  and  Feme,  [E.  3,)  (F.  2.)  30.J,  306;  1  Vern.  39G. 

(c)  2  Kent's  Com.  135.  (g)  Per  Kent,  5  Johns,  thy.  Rep.  208,  and  see  th« 

(d)  1  Verii.  i61;   )  liac.  Ab.  Bay-on  and  Feme,  authorities  there  cited. 

(D,;  Cro.  Eliz.  908.  (h)  4  Peiersd.  Ab.  36;  and  see  note  below. 


(1)  The  statute  of  dislributlon,  of  the  22  and  23  Charles  II.,  and  the  25th  sec- 
tion of  the  statute  of  29  Charles  II.  C.  3,  in  exphmation  thereof,  and  which  have, 
in  siilistance,  been  re-enacted  in  many  of  tlie  States  of  tiie  Union,  vest  in  the  Inis- 
band,  {/.s  next  of  kin  to  the  deceased  wife,  all  her  choses  in  action,  which  have  not 
been  r(  dnred  to  possession  by  the  luisbund,  during' liei"  lifetime.  {Co.  Lift.  Lib. 
3,  note  304;  6  Jolins.  Rep.  112  )  The  statute  of  Ohio  contains  no  such  provision; 
but,  on  liie  onirary,  is  imperative  and  general  in  its  ennctnients  in  relation  to  the 
disM-ibntioii  of  ini(  sia'es'  estates:  (S/ii/.  2t^8,  §10:''  and  hence  the  ride  laid  down 
in  the  text.  (3  C/iij  Nrp  Sn.  Ciiro  135  147  8.  15.5  la  164;  2  Desnits-  Eqn.  Rep. 
226,  iiule,  0111/422,  iiole  )  It  stems  that  c/iofUfs  rraf,  if  the  hnshand  survive  tiie 
wile,  will,  uhellicr  lei^al  oi-  icpi. table,  remain  with  him  Iji/  rigid  of  iitarriage,  and, 
consequently,  without  taking'  out  letters  of  administration  upon  her  effects.  (4 
Felersd'a.  Ad.  34;  Co.  Lilt.  361,  a.) 

43 


338  HUSBAND  AND  AVIKE.  [J*/i.  2,  Title  21, 

(D)  As  to  the  personal  ])ropcrtij  of  the  wifc^  such  as  money,  goods", 
cattle,  moveables,  and  otiier  chattels,  which  she  had  in  possession 
at  the  time  ot"  the  M)arriage  in  her  own  right,  and  not  in  right  of 
another,  they  vest  immediately  and  absolnloly  in  the  husband;  and 
he  can  dispose  ol'  them  as  he  pleases.  On  his  death  they  go  to  his 
representatives,  like  the  resiihie  of  his  jno])erty.  So,  if  any  such 
goods  or  chattels  come  to  iier  possession  in  her  own  right,  alter  the 
marriage,  they,  in  like  manner,  immediately  vest  in  the  husband. 


Sec.    II. OF    TIIK    DUTIES    AND    LIAHILITIES    WHICH    THE    HUSBAND  AS- 
SUMES  BY  THE  MARRIAGE. 


(.4)  For  the  contracts  and  debts  of  the  icife  before  marriage^  and 
also  for  trespasses  and.  other  inpiries  done  by  her  to  the  pei'son  or 
property  of  another  before  the  mari'iiige,  the  husband  is  answerable. 
An  action,  in  such  case,  will  lie  against  them.* 

A  recovery  must  be  had  before  the  wife  dies,  for,  upon  her  de- 
cease, the  husband  is  discharged,  whether  he  received  projierty  from 
her  or  not;**  but  her  estate,  if  she  have  any,  will  be  subject  to  the 
payment  of  her  debts.  After  the  husband's  decease,  his  represent- 
atives are  not  liable  on  such  claims,  but  the  wife  is."^ 

(B)   When  he  is  liable  for  necessaries  furbished  to  her. 

The  husband  is  bound  to  provide  the  wife  with  food,  clothing,  and 
other  necessaries,  suitable  to  her  situation  and  his  condition  in  life 

If,  while  the  husband  and  wife  live  together,  she  make  ordinary 
purchases  of  necessaries,  the  husband's  assent  may  be  presumed;  for 
it  cannot  be  reasonably  supposed  that  a  man  would  refuse  his  as- 
sent to  the  purchase  of  necessaries  for  his  family.  But  if,  in  such 
case,  his  dissent  be  previously  made  known,  the  presumption  of  his 
assent  is  destroyed,  and  the  seller  could  not  recover  unless  he  show- 
ed that  the  husl)and  neither  supplied  her  with  necessaries,  nor  the 
means  of  obtaining  them,  and  that  the  goods  were  strictly  necessa- 
ry for  her  own  support,  or  that  of  his  finnily.*^ 

If  the  goods  supplied  to  the  wife  be  not  necessaries,  the  husband 
will  not  be  responsible,  unless  the  plaintiif  prove  either  the  express 
authority  of  the  husband  to  make  the  purchase,  or  facts  from  which 
his  nuthority  may  be  fairly  inferred.^ 

If  tlie  husband  and  wife  part  by  consent,  ond  he  secure  to  her  a 
separate  mainteninco  suitable  to  his  condition  and  circumstances, 
and  pay  it  according  to  agreement,  he  is  not  answerable  for  neces- 
saries; and  the  general  re])utation  of  the  separation  in  the  neighbor- 
hood will,  in  such  case,  be  deemed  sufficient  notice  not  to  trust  her  on 
the  credit  of  her  husband. s     If,  however,  the  husband  fail  to  pay  the 

(a)  1  Bar.  Ab.  Baron  and  Feme,  (L).  (e)   12  Eng.  C.  L.  Rep.  238;   10  Id.  206;  25  Id. 

(b)  3  P.  Wins.  409.  465. 

(c)  1  Cainpb.  189.  (g)    1   Salk.  116;    S.   C.  1  Ld.  Raym.  444;    8 

(d)  lOEiig.  C.  L.  Rep.206;  Ld.  Raym.  1006.  Johns.  Rep.  72. 


§2,  (A),(B),(C).]  HUSBAND  AND  WIFE,  330 

allowance,  the  person  who  supplies  the  wife  with  necessaries,  may 
sue  and  recover  from  the  husband,  though  forbidden  to  trust  her.*- 
So,  where  there  is  a  divorce  i'rom  bed  and  board  only,  and  not  a 
complete  dissolution  of  the  marriage  contract,  and  the  husband  fails 
to  pay  the  allowance  directed  by  the  court,  he  will  be  liable  for 
necessaries  provided  for  her,'' 

If  the  husband  abandon  or  send  away  his  wife,  he  is  liable  for 
necessaries  even  if  he  give  notice  not  to  trust  her,'^ 

If  the  husband  treat  the  wife  so  harshly  as  to  give  her  reasonable 
ground  to  apprehend  personal  violence,  or  bring  a  common  woman 
into  the  house  to  reside  there,  she  is  justified  in  leaving  him,  and  he 
will  be  liable  to  those  who  provide  her  with  necessaries,  though  he 
give  notice  not  to  trust  her,''  In  general,  where  goods  are  furnish- 
ed to  a  married  woman  while  living  apart  from  her  husband,  the 
plaintiff  must  show  in  the  suit  against  the  husband,  that  her  ab- 
sence was  justifiable  or  necessary;  for  she  may  have  left  under  cir- 
cumstances which  would  exonerate  the  husband  from  all  liability .° 

If  the  wife  leave  her  husband  with  an  adulterer,*  or  live  with 
another  person  in  a  state  of  adultery,  or  elope  and  voluntarily 
leave  her  husband  without  just  cause,  and  without  his  consent, 
though  it  be  not  with  an  adulterer;  in  all  these  cases  the  husband 
cannot  be  mide  liable  even  for  necessaries. s^  The  fact  that  the 
person  who  supplied  the  necessaries  did  not  know  of  the  elopement 
or  guilt  of  the  wife,  will,  in  general,  make  no  difference,  if  the  cir- 
cumstances of  the  separation  were  of  sufficient  notoriety  to  put  him 
on  inquiry.'^ 

But  if,  after  voluntarily  leaving  her  husband  without  his  consent, 
she  offers  to  return,  and  the  husband  refuses  to  receive  her,  he  is 
liable  for  necessaries,  even  though  he  give  notice  not  to  trust  her.' 
Her  offer,  however,  to  return  after  having  committed  adultery,  does 
not  render  the  husband  liable  for  necessaries  subsequently  purchas- 
ed,'' unless  he  receive  her  again.' 

These  are  sound  principles,  adopted  to  prevent  infidelity,  and  to 
discourage  disobedience. 

It  will  be  perceived  from  the  law,  a^  above  stated,  that  an  ad- 
vertisement by  a  husband,  in  a  newspaper,  of  the  elopement  of  his 
wife,  can  have  little  or  no  effect  upon  his  liability  for  debts  con- 
tracted by  her.  It  is,  in  general,  but  a  publication  of  his  own 
shame, 

(C)  ^1.9  to  crimes  and  injuries  committed  by  her. 

The  husband  is  not  liable  for  the  criminal  conduct  of  his  wnfe, 
though  he  may,  like  other  accessories,  be  convicted  for  aiding  or 

(a)  5  nos.  and  Pul.  M3;  12  Johns.  Rep.  248.     (g)  II  Jolins.  l?ep.  281;  12  Eiig.  C.  L.  Rep.  9; 

(b)  15  Emu.  C.  I..  Rep.  5.3.5.  -2  Sra   ii75. 

(c)  8  Johns   Rep.  72;  1  l.d.  Ray.  4M;  2  Stra.     (h)  2  K^^nt's  Com.  147;  8  Johns.  Rep.  72. 

1214;  4  Esp.  41.  (i)  12  Joliiis.  Rep.  293;  24  C.  L.  Rep.  277. 

(rt)  1  Esp.  C.  441;  12  Ene.  C.  L.  Rep.  9.  (k)  6  T.  R.  GO,}. 

(»)  12  Eng.  C.  Ij.  Uep.  218.  (I)  4  E»p.  C.  41;  4  Pelers.I.  Ah.  49. 


340  HUsnAND  AND  WIFE.  [Prt.  2,  Title  21, 

advising  her  to  commit  olTenccs.  If,  however,  she  commit  a  crime 
in  the  presence  and  by  the  commnnd,  and  in  aid  of  her  husbnnd, 
and  it  c;ni  be  fairly  presumed  th  it  she  is  nesting  merely  as  the  in- 
strument o\  her  husband,  and  by  his  coercion,  she  must  go  acquit, 
and  the  husband  ah)ne  must,  be  (-onvictcMJ. 

A  man  is  answerable  to  a  ihiid  ikmsoh  {\)\-  what  is  done  hy  his 
wife,  so  long  as  the  relation  ol'  husband  and  wife  continues,  though 
they  may  be  permanently  livmg  apart,  or  the  injury  be  done  in  his 
absence,  and  without  his  knowledge;  at  least,  if  it  be  not  shown 
that  the  wife  at  the  time  was  living  in  adultery.'' 


Sec.  III. OF  THE  POWER  OF  THE  WIFE  TO  ACT  WITHOUT  HER  HUSBAND. 

Whenever  the  wife  can  sue  and  be  sued  during  the  marriage 
without  her  husband  being  joined  in  the  action,  she  has  all  the 
powers  and  rights  of  an  unmarried  woman.  Under  what  circum- 
stances she  can  thus  sue  and  be  sued,  will  be  hereafter  stated.(l) 

The  wife  has  the  power  of  making  a  will,  and  devising  any  pro- 
perty, which,  upon  her  decease,  would  go  to  her  heirs.'' 

The  wife,  in  the  absence  of  her  husband,  must  be  considered  as 
having  a  general  authority  to  exercise  the  usual  and  general  care 
over  his  property,  which  must  be  possessed  by  some  one;  unless  he 
has  constituted  some  other  person  his  agent  for  that  purpose.  The 
extent  of  this  power  to  bind  the  husband  as  his  agent,  arising  from 
the  mere  circumstances  of  his  absence  from  home,  must,  in  general, 
be  confined  to  such  acts  as  are  necessary  to  take  care  of  the  pro- 
perty. It  is  said  that  the  wife,  in  the  absence  of  the  husband,  may 
hire  out  the  horse,  or  other  property  of  the  husband,  even  if  the 
husband  had  before  directed  her  not  to  do  so.*^  If,  however,  the 
hirer  knew  that  the  husband  had  forbidden  the  hire,  it  is  clear  that 
the  contract  of  hire  would  be  void. 

When  the  wife  acts  for  her  husband  in  any  business  or  depart- 
ment, by  his  authority,  and  with  his  assent,  he  thereby  adopts  her 
acts,  and  is  bound  by  such  contracts  as  she  shall  make  within  the 
scope  of  the  authority.'' 

The  rule  in  relation  to  her  admissions,  being  evidence  against 
her  husband,  has  already  been  stated. (2) 


Sec.  IV. INCOMPETENCT    OF    HUSBAND    AND    WIFP:    AS    WITNESSES. 

The  husband  and  wife  cannot  be  witnesses  for  each  other,  for 
their  interests  are  identical;  nor  against  each  other,  on  grounds 

(a)  24  Eng.  C.  L.  Rep.  419.  (c)  10  Wend.  Rep.  79. 

(b)  5  Ohio  Rep.  65.  (d)  1  E»p.  Rep.  142;  Wright's  Rep.  595. 


(1)   See  pages  342,  .343. 
(3)   See  pages  72,  78. 


§3,  4,  5,  (A).]  HUSBAND  AND  WIFE.  341 

of  public  policy,  nnd  to  prevent  dissensions  between  them.  So  im- 
portnnt  is  this  rule,  that  the  law  will  not  allow  it  to  be  violated  f  ven 
by  ngreeinent;"  and  the  princ'ple  is  further  preserved  by  adhering 
to  the  rule  even  after  the  marriage  tie  hns  been  dissolved  by  the 
death  of  one  of  the  parties,  or  by  a  divorce.''  The  only  exception 
is  where  the  wife  complains  against  the  husband  for  an  assault  and 
battery  upon  her  person,  or  asks  that  he  may  enter  into  a  recogni- 
zance to  Reep  the  peace.  In  all  other  cases,  civil  or  criminal,  where 
the  liusband  or  wife  is  a  party  to  the  suit,  both  are  incompetent  to 
testify. 

In  a  prosecution  for  marrying  two  wives,  the  second  wife  is  a 
competent  witness,  provided  there  is  proof  of  the  legality  of  the 
first  marriage;   because  the  second  marriage  is  totally  void.*" 

In  a  criminal  case,  the  wife  is  not  a  competent  witness  against 
any  co-defendant,  tried  with  the  husband,  if  the  testimony  concern 
the  husband,  although  it  be  not  given  directly  against  him.'*  Nor 
cnn  her  testimony  be  received,  if  it  tend  to  the  husband's  acquittal.® 
When  the  w^ife  would  be  incompetent  on  such  grounds,  her  admis- 
sions cannot  be  given  in  evidence. 

When  either  husband  or  wife,  not  being  a  party  to  the  suit,  is  in- 
terested in  the  result.(l)  neither  can  be  a  witness  for  the  other.^ 
Where  the  husband  is  disqualified  by  his  interest,  the  wife  is  also 
incompetent  to  testify.  On  the  other  hand,  as  the  husband  would 
be  bound  to  testify  in  a  suit  where  he  is  not  a  party,  though  his  tes- 
timony might  subject  him  to  tiie  payment  of  a  debt,  so,  in  such  case, 
the  wife  may  be  compelled  to  testify.^ 


Sec.  V. —  OF  ACTIONS  brought  by  husband  and  wife. 


(A)   Where  they  must  join  as  j^hiin tiff's. 

In  general,  the  husband  cannot  sue  alone,  but  must  join  with  his; 
wife,  in  all  actions  brought  upon  any  bond,  note,  or  other  personal 
contract,  made  by  the  wife,  before  the  marriage,  whetiier  the  mo- 
ney became  due,  or  the  contract  was  violated,  before  or  after  the 
marriage.' 

When  the  wife  is  executrix  or  administratrix,  they  must,  in  gen- 
eral, join  in  the  action. 

For  trespasses  and  other  injuries  done  to  her  person,  or  personal 
or  real  property,  before  marriage,  she  must,  in  general,  join  in  the 
action.'' 

(a)  2  Stark.  Ev.  706.  (g)  1  M-  Rnym.  744;  Sir.  1095,  supra. 

(b)  Per  M.  Elllnborouoii,  6  East,  192.  (h)  2  Siark.  Ev.  709;  11  Mass    Rep.  2H6. 

(c)  T.  Ray.  I.  (i)   1  Com    J)i^.,  Baron  and  Feme,  ^y /,   Bnc. 

(d)  1  Hale,  301;  1  Mass  Uep.  15.  \\y .  B.  and  F.,{K). 

(e)  Str.  J095.  (k)  1  Chit.  PI.  61;  Wriglifs  Rep.  466. 


(1)   As  to  wliat  is  an  interest  in  tlie  result  of  a  suit,  see  page  .OO. 


342  HUSBAND  AND  WIFE,  [Prt.  2,  7'i.lk  21, 

(jB)   Wlio'e  the  husband  must  sue  alone. 


In  fTcncral,  the  wife  cannot  join  in  any  action  upon  a  contract 
mnde  tluiini^  the  marriage;  as  for  lier  work  and  hihor,  or  for  goods 
sold,  or  money  lent  l^y  lier;*  i'or  the  husband  is  entitled  to  her  earn- 
ings, and  siie  could  have  no  property  in  the  money  or  the  goods. 

Where  there  is  a  debt  due  the  wife,  otherwise  than  by  a  sealed 
instrument,  and  the  husband  procures  the  debtor's  seeded  instrument 
payable  to  himself,  the  wife  cannot  join  in  the  action  upon  it;  be- 
cause, by  taking  the  sealed  instrument,  the  original  debt  is  extin- 
guished, and  the  wife  is  not  a  party  to  that  instrument.  So,  if  a 
new  verbal  promise  be  made  to  the  husband  alone,  to  pay  him,  in 
consideration  of  his  forbearance  to  sue  on  a  contract  made  with  the 
wife  before  the  marriage,  the  husband  alone  should  sue  thereon;  but 
if  he  choose,  in  such  case,  to  sue  on  the  original  contract,  she  must 
be  joined  in  the  action, ** 

We  have  already  seen,  that  for  injuries  to  the  personal  or  real 
property  of  the  wife,  committed  before  marriage,  she  must,  in  gene- 
ral, join  in  the  action. (1)  If  property  of  the  wife  be  in  the  possession 
of  a  person,  before  marriage,  who,  after  the  marriage,  wrongfully 
refuses  to  deliver  it  up,  the  husband,  in  general,  ought  to  sue  alone. 

If  the  defendant,  after  the  marriage,  has  injured  or  wrongfully 
taken  the  furniture,  cattle,  or  otlier  personal  goods  or  chattels, 
which,  before  the  marriage,  belonged  to  the  wife,  the  husband  must 
alone  sue.*^ 


(C)   TVhere  the  icife  may  sue  ahne. 

The  general  rule  is,  that  during  the  marriage,  the  wife  cannot 
make  a  contract  so  as  to  bind  herself.  But  this  rule  is  subject  to 
certain  exceptions.  The  wife  is  treated  as  nn  unmarried  female, 
and  is  liable  on  her  contracts,  and  can  sue  and  be  sued  in  her  own 
name,  if  her  husband  is  a  foreigner,  residing  abroad.*'  But  it  would 
seem,  if  her  husband  is  a  citizen,  or  has  ever  resided  in  this  country, 
though  now  residing  abroad,  she  can  neither  sue  nor  be  sued  as  an 
unmarried  female. *'(2) 

(a)  1  Com.  Dii.,  Baron  and  Feme,  (W).  (d)  2  Esp.  Rep.  554.  5S7;  1  Bos.  and  Pul.  357. 

(b)  1  Cliil.  PI.  19.  (e)   11  East,  301;  26  Eiig.C.L.  Uep.78,7i.  (a); 

(c)  Chit.  PI.  62,  63. 


(1)  Seepat^e  341. 

(2)  It  lias  been  determinecl  in  M.-issacluisetts,  in  the  case  of  Grei^ory  vs.  Paul, 
15  Mnsx.  Rep.  31,  {(ind  see  Mbott  vs.  Bay  ley,  6  Pick.  8'», )  lliat  if  a  feme  covert  be 
driven  by  cruelty  from  the  liouse  of  licr  liusband,  and  .slie  retire  to  anotluT  state, 
and  maintain  herself  by  her  labor,  without  any  provision  being-  made  for  her  by  her 
husband,  who  abandons  her,  she  may  sue  as  a  feme  sole,  though  her  husband  be  a 
citizen.     But  see  26  Eng.  C.  L.  Rep.  78,  note  {a). 


§5,(B),(C),(D),(E).]  HUSBAND    AND    WIFE.  343 

As  the  law  presumes  the  death  of  the  husband,  ^vhen  he  has  been 
abroad,  and  not  heard  from,  for  seven  years,  the  wife,  in  such  case 
\vill  be  deemed  a  widow\* 

If  the  husband  and  wife  live  separate  by  agreement,  and  he  fur- 
nish her  with  a  separate  maintenance,  or  if  slie  be  legally  divorced 
from  bed  and  board  merely,  she  is  still  subject  to  all  the  disabilities 
of  a  married  woman.'' 

The  wife  sues  or  is  sued  by  the  name  wdiich  she  acquired  by  her 
marriage,  or  the  name  by  wdiich  she  is  generally  known. 

(D)  When  the  husband  and  wife  may  jobi^  or  not^  at  their  election. 

They  may  thus  join,  or  not,  in  the  following  cases:  For  trespass 
upon  the  wife's  land  during  the  marriage,  or  in  an  action  of  forci- 
ble entry  or  detainer  to  recover  possession  of  the  wife's  land,'^  and 
for  the  rent  of  her  land,  arising  after  marriage.''  If,  durinc  the 
marriage,  a  contract  be  made  with  her  alone,  and  she  be  the  merito- 
rious cause  of  action^  they  may  join,  or  the  husband  may  sue  alone; 
as,  in  an  action  for  money  promised  to  the  wife  for  a  cure  perform- 
ed by  her  after  the  marriage.''  So,  where  a  bond  or  note  is  execu- 
ted to  the  wife  alone,  during  the  marriage ;S  or  a  legacy  is  left  to 
her;''  or  if  there  be  an  award  to  pay  a  particular  sum  to  the  hus- 
band, and  a  certain  sum  to  the  wife;  they  may,  in  these  cases,  join, 
or  the  husband  may  sue  alone.'  But  where  the  immediate  consid- 
eration for  the  promise  proceeds  from  the  husband,  althouuh  the 
WMfe  be  the  meritorious  cause  of  action,  she  should  not  join  in  the 
suit.  As,  where  A  owed  the  wife,  before  marriage,  and  he  pro- 
mised tlie  husband,  after  the  marriage,  to  pay  the  money  to  him  in 
a  certain  time,  if  he  would  forbear  to  sue;  upon  this  last  promise, 
the  husband  alone  must  sue.'' 

When  a  bond,  note,  or  contract,  is  executed  to  the  husband  and 
wife,  it  is  safest  for  the  husband  to  sue  alone  upon  it;  as,  even  in 
such  a  case,  the  wife  cannot  be  joined,  unless  she  is  the  meritorious 
cause  of  action,  or  has  a  distinct  interest  in  the  subject  matter  of 
the  instrument  sued  upon.' 

(E)  Who  must  sue  upon  the  death  of  the  husband  or  loife^  and  the 

effect  of  their  death  upon  suits  pending. 

It  has  already  been  stated,  under  what  circumstances  the  wife  is 
entitled,  after  the  decease  of  her  husband,  to  the  claims  and  debts 
which  were  due  to  her  before  her  marriage. (1)     Those  claims  to 

(a)  6  Fast,  80.  S.'J:   18  Johns.   Rep.   141;   Har-     (e)  2  Cm.  77.205. 

din's  Rep.  479:   il  En-;.   V.  L.   Rep.  335;     fei  2  Mod   217;  2  M.  and  P.  393. 
Sfo  ««?e  pase  (58,  wo'e.  (h)    1  II.  lij.  l  OH. 

(b)  2  Wni.  ihirks.  1  i95;  «  t.  R.  545;  6  T.  R.     (i)    Arch.  I'l.  and  F,v.  AX 

fi04;  2  tIaM.  l.'-,0;   10  Eii^'.  C.  L.  Kcp.  84.        (k)  Com.  Diz  ,  liiir„v  ami  Feme,  V.  W.  X. 

(c)  Arch.  PI.  a:id  Kv.  41.  (I)    1    II.  lilark.  lO'J;   10  Johns.   Kcp.   51,  and 

(d)  15  Johns.  Rep.  479.  iwte  (a;. 


(1)  Seepage  337. 


344  HUSBAND    AND    WIFE,  IP/t.   2,    Tltk  21, 

which  s!ie  is  entitled,  she  alone  can  sue  upon,  after  his  decease. 
But  if  she  die  hefcjre  the  husband  has  disposed  of  her  claisns  to  his 
own  use,  her  administrator  can  alone  sue  upon  tlicai,  and  the  right 
of  the  husband  is  forever  gone. 

If  the  husband  obtain  judgment  in  liis  own  name,  on  a  debt  due 
to  his  wife,  the  judgment  will  go  to  his  legal  representatives  upon 
his  decease;  but  his  interest  in  all  judgments  obtained  in  the  name 
and  in  favor  of  himself  a«r/  wife  jointly,  will  determine  on  his  death, 
or  the  death  of  his  wife  if  she  die  in  his  lifetime. " 

If  the  husband  die  while  a  suit  is  pending  in  the  name  of  himself 
and  wiiie,  for  a  debt  due,  or  an  injury  done  to  the  wife  or  her  pro- 
perty, before  the  marriage,  his  decease  should  be  mentioned  upon 
the  docket,(l)  and  the  cause  proceed  to  trial  and  judgment  in  favor 
of  the  widow,  as  in  other  cases. "^  If  the  widow-  die  while  such  suit 
is  pending,  it  cannot  be  prosecuted  further,  but  must  abate. (2) 


Sec.   YI. ACTIONS    AGAINST    HUSBAND    AND    WIFE. 

(-1)   W/ie?i  they  77iust  be  joined  as  defendants. 

In  actions  fc>r  debts  due  from  the  wife  before  the  marriage,  the 
suit  after  the  marriage,  must  be  against  the  husband  and  wife." 

A  married  woman  cannot  be  sued  without  her  husband,  even 
where  she  is  sole  executrix  or  administratrix  of  an  estate.** 

Where  the  wife  .alone  commits  an  injury  to  the  property,  person, 
or  reputation  of  another,  either  before  or  after  the  marriage,  they 
must  be  joined;  but  if  the  act  be  jointly  done  by  the  husband  and 
wife,  it  is  safest  to  sue  the  husband  alone. ^ 

(B)  JVhen  the  iLusband  must  lye  sued  alone. 

In  any, suit  upon  the  contract  of  the  husband,  or  for  any  injury 
done  by  him,  it  is  clear  that  he  must  be  sued  alone. 

(C)  When  the  icife  may  he  sued  alone. 

The  wife  cannot,  at  law,  be  sued  alone,  except  when  she  is  vest- 
ed with  all  the  rights  and  powers  of  an  unmarried  woman. (3) 

(a)  4  Petersfl.  Ab.  36.                           .                   (e)  Com.  nii.,  Buron  and  Feme,  Y;  Ye!v.  165, 

(b,  J=i;it.  6f>S.  $'55.  KJfJ;  5   Eiig.  C.  L.  Kep.  J2.';  Wright's 

(C;  S  Jo   lis    Hep.  1  1.5:  7  T.  R.  344.  3  16,  n.  (a).  Rep.  9. 
(di   Arch.  PI.  and  Ev.  61. 

(1)  TI.M'<:     "./'/,e    5,     1847   —  I'liP    cU-alli   of  t!ie    pluliitiff;   \ B ,  stlg- 

ge.scfl  liy  (■ n ,    Ills  widow  )" 

(2)  For  llic  lorin   of  tne    eiilrv    on   the  docket,  in  such  case,  see  page  24,  note 

Tlie  estate  of  llie  Imsbaiid  will  be  liable  for  the  costs  made  by  him,  aud  the  de- 
fendant will  be  li.ihle  lor  lus  own  costs. 
(2)  See  page  342. 


§6,(A),(B),(C),(D),7,8.]     HUSBAND  and  wife.  345 

(D)  Who  to  be  sued^  upon  the  death  of  the  hushand  and  wife^  and 
the  ejfect  of  such  death  upon  suits  pending. 

Upon  the  death  of  the  wife,  the  husband,  as  we  have  seen,  is  im- 
mediately discharged  from  his  liabihty  upon  all  contracts  made,  or 
injuries  committed  by  hei%  before  the  marriage,  unless  judgment 
has  been  obtained  against  him  and  his  wife,  before  her  decease.(l) 
If  she  die  before  judgment,  the  suit  cannot  proceed,  but  abates.(2) 
The  plaintiff  and  the  husband  will  be  liable  for  the  costs  by  them 
respectively  made;  but,  if  in  such  case,  the  wife  survive  him,  his 
death  may  be  mentioned  upon  the  docket(3),  and  the  cause  proceed 
to  trial  and  judgment  against  the  wife.* 

Where  the  husband  dies  before  judgment  is  obtained  against  him 
for  the  debts  of  the  wife,  she  may  afterwards  be  sued,  or  if  he  sur- 
vive her,  the  debt  may  be  collected  of  her  administrator,  as  in  other 
cases. 

Sec.  YII. — -of   the    effect  of  improperly  joining  or  omitting 
husband  or  wife  as  plaintiffs  or  defendants. 

As  suits  brought  before  justices  of  the  peace  may  be  appealed  to 
the  court  of  common  pleas,  and  advantage  there  taken,  by  plea  in 
abatement  or  on  the  trial  before  the  jury,  to  the  improper  joinder 
or  omission  of  husband  or  wife  as  parties;  it  is  in  all  cases  advisa- 
ble, and  least  expensive  for  a  party,  whenever  he  discovers  that  he 
has  committed  an  error  in  relation  to  the  parties  to  the  suit,  to  suf- 
fer a  nonsuit,  and  commence  a  new  action. 

Sec.  VIII.  —  of  the  effect  of  the  marriage  of  a  female  upon  a 
SUIT  brought  by,  or  against  her. 

If  an  unmarried  woman  commence  a  suit,  or  be  one  of  the  plain- 
tiffs, and  afterwards  and  before  judgment,  marry,  a  nonsuit  should 
be  rendered  in  favor  of  the  defendant.''  But  no  advantage  could 
be  taken  of  the  marriage,  after  judgment,  except  on  appeal  to  the 
court  of  common  pleas.  No  execution,  however,  could  issue  on 
such  judgment;  but  an  action  of  debt  might  be  brought  on  the  judg- 
ment, making  the  husband  and  wife  plaintitFs  to  the  action.'^ 

In  an  action  brought  against  a  womnn  who  marries  pending  the 
suit,  the  plaintiff  may  proceed  to  trial,  judgiriont,  and  execution,  in 
the  same  manner  as  if  she  had  not  intermarried.'^ 

(a)  3  p.  Wins.  409;  3  Mod.  186;  Stat.  668,  $85.     (c^  2  Arch.  Prac.  B.  R.  82. 

(b)  7  Ohio  Kep.  179,  180.  (dj  Cro.  Jac.3'23;  4  East.  521;  3  Bl.  Com.414. 


(1)  See  pages  34.3,  344. 

(2)  For  tlie  foim  of  the  entry  on  the  docket,  in  such  case,  sec  pag^e  24,  note  (IG). 

(3)  'I'lius:   ''June  1,    1847.— The  death  of  the  defendant,  A B ,  (Jlic 

husband,)  suggested  by  the  plaintiff." 

44 


TITLE  XXII. 
INFANTS;  AND  HEREIN, 

SECTION    I,  AVHO    ARE    INFANTS. 

II.  OF    THE    LIABILITY    OF    AN    INFANT,    FOR    NECESSARIES. 

III.  AS    TO    OTHER    CONTRACTS    BY    AN    INFANT. 

IV.  OF    THE    CONFIRMATION   OF  A  CONTRACT    BY  AN  INFANT,  AF- 

TER HE  ARRIVES  AT  FULL  AGE. 

V.  OF    THE    LIABILITY    OF  A  PERSON  WHO    CONTRACTS  WITH  AN 

INFANT, 

VI.  HOW  INFANTS  SHOULD  SUE  AND  BE  SUED. 


Sec.    I. WHO  ARE  INFANTS. 

The  age  of  twenty-one  years  for  males,  and  eighteen  for  females, 
has  been  fixed  by  law  as  the  period  when  an  absolute  and  unlimi- 
ted legal  ability  to  contract  and  make  deeds  shall  commence.^ 

Sec.    II. OF  THE  LIABILITY  OF  AN  INFANT  FOR  NECESSARIES. 

The  general  principle  of  law  is,  that  the  contract  of  an  infant, 
however  fair  and  conducive  to  his  interests  it  may  be,  is  not  bind- 
ing on  him  unless  the  supply  of  necessaries  to  him  be  the  object  of 
the  agreement,  or  unless  after  he  has  attained  the  age  of  majority, 
he  confirm  the  contract.  If  the  infant  live  with  his  father  or  guar- 
dian, and  their  care  and  protection  arc  duly  exercised,  he  cannot 
bind  himself  even  for  necessaries.** 

The  question,  what  are  necessaries,  depends  upon  the  real  cir- 
cumstances, and  wants  of  the  infant,  and  not  upon  his  apparent 
situation;  and  therefore,  in  general,  the  tradesman  who  trusts  him 
is  bound  to  make  due  inquiry,  and  if  the  infant  has  in  fact  been 
properly  supplied  by  his  friends  or  others,  the  tradesman  cannot 
recover.*^ 

An  infant  is  liable  for  food,  lodgings,  medicine,  and  education,  at 
fair  and  reasonable  prices,  and  for  such  quantities  of  apparel,  and 
of  such  a  quality,  as  may  be  conformable  to  his  estate.  The  term 
"necessaries"  is  not,  therefore,  to  be  strictly  confined  to  such  things 
as  are  absolutely  necessary  for  mere  support,  education  and  cloth- 
ing, but  is  a  relative  term,  depending  upon,  and  to  be  construed  in 
reference  to  the  wealth  and  a^e  of  the  infant.^ 

(a)  Stat.  438.  (b)  2  11.  Bla.  132.';. 

(c)  14  Ens.  C.  L.  Rep.  232;  1  Esp.  211;  25     (dj  1  Esp.  Rep.  211;  8  T.  R.  578;  5  Esp.  28 
Eng.  C.  L.  Rep.  600.  152. 


[Prt.  2,  Title  22,  §  1 ,  2,  3.]         infants.  347 

Necessaries  for  the  wife  and  chiildren  of  an  infant  are  deemed 
necessaries  for  iiim.^ 

The  infant  is  not  bound  to  pay  for  the  articles  furnished,  more 
than  they  were  reasonably  worth;  nor  can  he  be  prevented  by  the 
form  or  terms  of  the  contract,  from  inquiring  into  their  real  value. 


Sec.    III. AS  TO  OTHER  CONTRACTS  OF  AN  INFANT. 


All  contracts  of  an  infant,  except  for  necessaries,  are  in  general, 
either  void  or  voidable. 

A  void  contract  is  one  which  is  not,  and  never  can  be  binding. 
Such  a  contract  cannot,  therefore,  be  confirmed  or  rendered  valid 
at  any  other  time. 

A  voidable  contract,  so  far  as  relates  to  an  infant,  is  one  that  is 
binding  on  others,  until  it  is  disaffirmed  or  denied  by  the  infant, 
who  can  avoid  it  by  plea  of  infancy,  or  may,  after  he  arrives  at  full 
age,  confirm  it,  and  thereby  render  it  binding  upon  him.'' 

What  contracts  of  an  infant  are  void,  and  what  are  merely  void- 
able, no  one  knows.  The  most  reasonable  and  definite  rule  that 
has  been  laid  down,  is  this:  When  the  court  can  pronounce  the 
contract  to  be  to  the  infant's  prejudice,  it  is  void;  but  if  the  eflect  of 
the  contract  upon  the  infant's  interest  be  uncertain,  or  for  the  ben- 
efit of  the  infant,  it  is  voidable  only,  at  the  election  of  the  infant.*^ 
A  late  writer  upon  this  subject,  (Bingham.)  insists  that  "all  deeds, 
acts,  and  contracts  of  an  infant,  except  an  account  stated, (1)  a 
warrant  of  attorney,  a  devise  of  lands,  a  release  as  executor,  and  a 
conveyance  to  his  guardian,  are  voidable  only,  and  not  absolutely 
void."  It  has,  liowever,  been  decided,  that  a  negotiable  note  given 
by  an  infant  for  necessaries  is  void:''(2)  and  his  acceptance  of  an 
order  or  bill  of  exchange;^  and  his  bond  with  a  penalty ;§  and  his 
contract  as  a  surety  for  another,''  are  void. 

The  law  does  not  consider  an  infant  as  having  sufficient  discre- 
tion to  carry  on  a  trade  or  business;  consequently,  he  is  not  liable 
for  goods  sold  to  him,  or  work  done  for  him,  or  on  a  contract  enter- 
ed into  by  him,  in  his  trade  or  business.'  Neither  does  the  law 
deem  him  possessed  of  sufficient  discretion  to  apply  money  placed 
in  his  hands  to  purchase  necessaries;  consequently,  he  is  not  liable 

(a)  1  Str.  I6R.  (g)  8  East.  331;  Co.  Lit.  172,  (n);  3  M.  and  S. 

(b)  BinEliaiii.g;  2  Esp.  480.  482. 

(c)  2  Kents  Com.  2.J6:  2H.  ni.Sll.  (h)  II  Ser.  and  R.305. 

(d)  11  Johns.  Rep.  33;  1  Campb.  552.  (i)  Dine,  on  lnf  9;  2  Kent's  Com.  233;  14  Eng. 

(e)  1  Campb.  552.  C.  L.  Kep.307;  9  Id.  256. 


(1)  The  nature  of  an  account  stated  is  this:  Parties  meet,  discuss  tlicir  several 
claims,  ami  strike  and  agree  upon  a  balance. 

(2)  Hut  in  such  case,  the  infant  could  be  sued  on  the  account  for  the  necessaries 
furnished. 


348  INFANTS.  [Pn.%  Title  1'2^ 

for  money  delivered  to  him  for  such  purpose,  allhough  with  it  he 
purchase  necessaries.''(l) 

An  infint  may  protect  himself  from  the  performance  of  a  con- 
tract, although  he  fraudulently  represented  himself  to  be  of  age,  or 
otherwise  deceived  the  other  party  to  it.(2)  Where  an  infant  does 
work  in  payment  of  his  contract,  or  pays  money  upon  his  contract, 
he  cannot  by  avoiding  it,  get  back  the  money,  or  recover  a  compen- 
sation for  his  work.  He  can  only  avoid  his  contracts  so  far  as  the 
same  remain  unexecuted.'' 

He  is  liable  for  an  assault  and  battery,  trespass  to  real  or  personal 
property,  for  embez/.ling  money,"  for  wilfully  and  hUenlionaUy  in- 
juring an  animal  hired  to  him,''  (but  not  for  killing  it  by  mere  severe 
usage)®  and  for  all  wrongful  acts  of  a  like  nature.  In  such  cases, 
his  infancy  is  no  protection  if  he  has  arrived  to  years  of  discretion. 


Sec.  IV. —  OF  the  confirmation  of  a  contract  by  an  infant,  af- 
ter HE  ARRIVES  AT  FULL  AGE. 

A  void  contract  can  only  be  revived  by  a  new  contract;  but  a 
voidable  contract  mny  become  binding  upon  an  infant,  by  his  affirm- 
ing it  or  assenting  to  its  validity,  after  he  arrives  at  majority. 

As  to  what  circumstances  are  sufficient  to  show  that  the  infant, 
after  arriving  at  full  age,  has  dissented  from,  or  assented  to  the 
contract,  no  definite  rule  is  established.  The  situation  of  the  in- 
fant when  the  contract  was  made,  and  his  acts  after  his  majority, 
may  raise  a  sufficient  presumption  that  he  has  assented  to  the  con- 
tract, though  he  may  have  said  nothing.  As  where  an  infant  was 
a  partner,  and  continued  to  deal  with  a  creditor  of  the  firm,  after 
full  age,  it  was  holden  to  be  a  confirmation  of  the  contract,  to  pay 
debts  of  the  firm,  contracted  with  such  creditor  during  the  infancy. 
The  promise  confirming  the  contract,  must  in  general,  be  either  in 
express  wdrds,  or  positive  actions  in  favor  of  the  contract,  or  by 
such  silent  assent  as  clearly  shows  an  acquiescence. 


Sec.  V, —  OF  the  liability  of  a  person  who  contracts  with  an 

INFANT. 

If  a  person  enter  into  an  agreement  with  an  infant,  he  cannot 
avoid  the  contract,  unless  indeed  the  infant  himself  hath  disafhrmed 

(a)  Salk.  279.  (d)  2  Wend.  Rep.  137. 

(b)  8  Cow.  84;  8  Taunt.  508.  (e)  3  Ravvle  R.  351. 

(c)  1  Esp.  172. 


(1)  In  such  a  case,  a  court  of  equity  will  relieve.      1  Pr.   Wms.  558. 

(2)  1  Johns.  Ca.  127.  But  where  an  infant  obtained  goods  upon  such  fi-audu- 
lent  declaration,  though  he  avoided  payment  of  the  price  of  the  goods,  it  was 
holden  that  the  seller  might  retake  the  goods  or  bring  an  action  of  trover  for  them, 
in  the  same  manner  as  if  not  sold,  for  by  reason  of  the  fraud,  he  did  not  part  with 
his  right  to  them.      15  Mass.  Hep.  350. 


§4, 5, 6.],  INFANTS,  349 

it,  or  it  be  otherwise  void.  Hence,  it  is  laid  down  as  a  general  rule, 
that  infancy  is  a  personal  privilege,  of  which  no  one  can  take  ad- 
vantage but  the  infant  himself,  or  his  executors  or  administrators.* 


Sec.  VI. —  HOW  infants  should  sue  and  be  sued.^ 

An  infant  cannot  sue  except  by  his  guardian,  or  by  "his  next 
friend,  who  must  be  named  in  the  process,  and  on  the  docket.(l) 
The  person  who  is  named  as  next  friend  is  liable  for  costs,  if  judg- 
ment is  rendered  against  the  plaintiff.  An  execution,  however,  can- 
not be  issued  against  him  on  the  judgment;  but  after  the  costs  are 
demanded  of  him,  he  will  be  liable  to  the  separate  suits  of  those  to 
whom  the  fees  and  costs  are  due.''  The  next  friend  or  guardian 
may,  it  is  said,  recover  of  the  infant  the  amount  of  costs  paid  by 
him."^ 

If  the  suit  is  against  an  infant,  process  issues  against  him,  and  he 
is  named  party  defendant  on  the  docket  in  the  same  manner  as  if 
he  were  of  full  age.  At  the  appearance  day  of  the  summons,  or  on 
the  return  of  the  capias  with  his  body,  the  justice  should  require 
him  to  name  a  guardian  to  defend  the  suit.  If  he  will  not  name 
one,  or  fail  to  appear  at  the  return  of  a  summons,  the  justice  should 
appoint  one.^  The  guardian  may  be  any  person  of  full  age,  who 
will  consent  to  be  named  as  such.  These  circumstances  should  be 
entered  on  the  docket  after  noting  the  return  of  the  writ.(2)  The 
cause  then  proceeds  to  trial  and  judgment,  against  or  for  the  infant, 
as  in  other  cases. 

The  guardian  appointed  by  the  justice  for  the  infant  defendant  is 
neither  liable  for  the  judgment  or  the  costs,  but  execution  issues 
against  the  infant  defendant  as  in  other  cases. 

(a)  11  Mass.  147;  9  id.  62.  100;  10  id.  137.  (d)  Willes'  Rep.  190. 

(b)  Stat.  665,  $75.  (e)  2  Covven's  Rep.  430. 

(c)  Willes'  Rep;  190;  Tidd  71,  72;  13  East,  6, 7. 


(1)  Tlius:   "A B ,  an  infant,  who  sues  by  his  next  friend,  I G ." 

(2)  Thus:   "C D ,  the  defendant,   being-  an  infant,  appeared,  and  was 

requested  to  name  a  guardian  to   defend  this  suit;   [he  named  I G ,  who 

appeared,  and  was  by  Iiis  consent,   appointed  by  me  for  that   purpose;  or  saif,  if 

the  fact  be  so,  he  refused  to  name  one;  wliereupon,  I G —  was  appointed  by 

me  for  tiiat  purpose,  and  appeared  and  consented  thereto."] 

If  the  (lefenduni  do  not  appear  on  the  day  required  hi^  the  summons,  say — "The 

defendant  failed  to  appear;  and  he  being  an   infant,  1  appointed  I G his 

guardian,  who  appeared  and  consented  tiiereto." 


TITLE  XIV. 


INTEREST. 


SECTION  I.         OF  THE  RATE  OF  INTEREST,  AND  THE    CONSTRUCTION  OF  THE 
STATUTE  IN  RELATION   THERP.TO. 
II.        OF  THE  MOPE   OF  COMPUTING    INTEREST. 

(A)  Where  payment  is  made  before  the  debt  is  due. 

(B)  Where  payynents  exceeding  the  interest  are  made 

after  the  debt  is  due. 

(C)  Where  the  payment  is  less  than  the  interest  due. 

in.       WHERE  INTEREST  UPON  INTEREST  MAY  BE  ALLOWED. 


Sec.    I. OF    THE    RATE  OF  INTEREST,  AND  THE  CONSTRUCTION  OF  THE 

STATUTE  IN  RELATION  THERETO. 

The  statute  provides,^  that  all  creditors  shall  be  entitled  to  re- 
ceive interest  at  the  rate  of  six  per  cent,  and  no  more,  on  all  money 
after  it  is  due,  either  on  bond,  bill  of  exchange,  promissory  note,  or 
Other  instrument  of  writing,  or  contract  for  money  or  property;  on 
all  balances  due  on  settlement  between  parties  thereto,  or  money 
withheld  by  unreasonable  and  vexatious  delay  of  payment;  on  all 
judgments,  from  the  date  thereof;  and  on  all  decrees  obtained  in 
any  court  of  chancery  for  the  payment  of  money,  from  the  day 
specified  in  the  decree  for  paj'ment,  or  if  no  day  be  specified,  then 
from  the  day  of  the  entry  of  the  decree,  until  such  debt,  money,  or 
property,  is  paid. 

It  will  be  perceived  that  the  statute  is  silent  in  relation  to  con- 
tracts for  interest.,  and  relates  only  to  the  interest  which  may  be 
recovered,  after  money  or  property  is  due.  As  nothing  is  said  in 
the  statute  as  to  the  interest  which  parties  may  contract  to  pay  be- 
fore a  debt  is  due,  the  supreme  court  of  Ohio  decided,  that  a  person 
might  agree  to  pay  any  rate  of  interest  he  thought  proper,  and  that 
such  a  contract  could  be  enforced.  But  now  by  law,  recently  de- 
cided by  the  same  court,^  a  promise  to  pay  more  than  six  percent 
interest,  is  constructively  forbidden  by  the  above  statute.(l) 

(a)  Stat.  465.  (b)  7  Oliio  Rep.  80. 


(1)  As  to  interest  taken  by  banks,  see  Part  2,  Title  10. 


[Prt.  2,  Title  24,  §1.]  interest.  351 

In  the  prior  editions  of  this  work  it  was  stated  that  only  six  per 
cent  interest  could  be  recovered,  even  where  a  new  note  had  been 
taken  which  included  the  usurious  interest  as  principal.  It  is,  how- 
ever, said  that  the  supreme  court  on  the  circuit  have  refused  to  per- 
mit a  person  who  gives  a  note  or  bond  for  a  certain  sum  of  money, 
to  show  that  a  portion  of  the  sum  mentioned  in  the  note  or  bond  as 
principal  was  in  fact  usurious  interest.  It  is  said  that  they  have 
also  refused  to  permit  a  party  who  has  paid  usurious  interest  on  a 
note  or  bond,  to  apply  such  payment  to  a  reduction  of  the  princi- 
pal; it  having  been  paid  as  interest,  the  court  will  not  permit  it  to  be 
disturbed.  But  it  is  said,  in  these  and  the  like  cases,  the  defendant 
has  his  remedy  in  chancery,  provided  the  usury  included  in  the  note, 
&c.  is  so  large  as  to  amount  to  oppression,  and  shock  the  moral 
sense,  but  not  otherwise. 

But  if  a  note  or  bond  is  given  for  a  certain  sum,  at  a  rate  of  in- 
terest beyond  six  per  cent,  the  holder  of  the  note  can  only  recover 
six  per  cent  interest  upon  it. 

The  rate  of  interest,  however,  upon  contracts  to  be  paid  in  an- 
other State  or  country,  is  regulated  by  the  rate  of  interest  where 
payable.  Thus,  if  a  person  make  his  note  in  the  State  of  New 
York,  where  the  rate  of  interest  is  seven  per  cent,  the  holder  of 
the  note  may  here  recover  seven  per  cent  interest.*  Only  six  per 
cent,  however,  can  be  allowed  on  the  judgment,  after  it  is  rendered. 

Where  a  note  or  bond  is  payable  at  a  future  period,  and  nothing 
is  mentioned  in  the  instrument  in  relation  to  interest,  interest  is 
only  allowed  from  the  time  it  became  due.  It  seems,  that  where  a 
promissory  note  is  payable  on  demand,  interest  only  can  be  charged 
from  the  time  the  money  was  demanded ;  or  if  no  demand  was  made 
before  suit,  then  interest  is  chargeable  from  the  time  the  summons 
issued. "^     Where  an  instrument  is  in  the  shape  of  a  due  bill — thus: 

"Due  A B ,  fifty  dollars,  for  value  received;"  interest  may 

be  charged  from  its  date. 

A  general  and  established  custom  prevails  among  merchants  in 
some  villages  and  towns,  to  charge  interest  on  an  account,  after  six 
or  nine  months.  If  the  custom  has  been  genei'ally  adopted  and 
known,  it  will  form  a  part  of  the  contract  of  credit,  and  interest 
may  be  allowed  accordingly.  So,  if  a  merchant  uniformly  charges 
his  customers  interest  after  a  certain  period,  and  you,  knowing  this, 
purchase  goods  of  him  on  credit,  it  will  be  presumed,  unless  the  con- 
trary appear,  that  you  agreed,  like  other  customers,  to  pay  interest.'^ 
But  interest  is  not,  in  general,  recoverable,  for  unli(|uidated  or  un- 
certain damages,  or  upon  demands  uncertain  in  amount'';  nor  on  an 
open  running  account,  where  there  are  no  circumstances  from  which 

(a)  20  Johns.  Kep.  102;  2  Id.  235.  Bfriiriion  ponerally  given  to  notes  paynblo 

(b)  Wri^Mit'a  Rep.  582.  .526.  542.     This  deci-  oti  dcniand. 

Bion  is  not   in  accordance  with  tlie  con-     (c)  2  Wend.  Rep.  501;  4  Id.  483. 

(d)   1  Johns.  Rep.  315. 


352  INTEREST.  [Pri.  2,  Title  24, 

an  agreement  to  allow  interest  can  be  inferred,*  and  there  has  been 
no  vexatious  delay  of  payment.  As  a  general  rule,  however,  inter- 
est is  allowable  on  cash  advances,  although  they  are  contained  in  an 
unliquidated  account.'' 


Sec.  II. —  OF  THE  mope  of  combuting  interest. 


(A)  Where  payment  is  jnade  before  the  debt  is  due. 

If  the  debt  is  not  on  interest,  the  payment  is  applied  to  the  re- 
duction of  the  debt,  without  allowing  any  interest  on  the  money 
paid,  unless  the  parties  otherwise  agree.  But  if  part  payment  of  a 
debt  which  is  on  interest,  be  made  before  it  is  due,  the  amount  paid 
should  be  applied  to  the  extinguishment  of  principal,  and  such  pro- 
portion of  interest  as  has  accrued  on  the  principal,  thus  extinguish- 
ed, at  the  time  of  the  payment.  For  instance,  a  note  is  given  for 
one  hundred  dollars,  payable  in  one  year  with  interest.  At  the  end 
of  six  months,  a  payment  of  fifty-one  dollars  and  fifty  cents  is  made. 
The  whole  payment  is  not  applied  so  as  to  reduce  the  one  hundred 
dollars,  (the  principal,)  down  to  forty-eight  dollars  and  fifty  cents, 
but  one  dollar  and  fifty  cents  of  it  is  apj)iied  to  the  interest  of  fifty 
dollars  for  six  months,  and  the  residue  of  the  payment  to  sink  fifty 
dollars  of  the  principal;  there  would  be  due  on  the  note  at  the  end 
of  the  year,  fifty-three  dollars,  being  the  balance  of  the  principal 
with  interest  thereon,  for  one  year.'(l) 

(B)  Where  payyncMts  exceeding  the  interest  are  made  after  the  debt 

is  due. 

In  such  case,  interest  should  be  calculated  on  the  debt  up  to  the 
time  of  the  payment,  and  the  principal  and  interest  then  added  to- 
gether, and  the  payment  subtracted  from  the  sum  total.  Subsequent 
interest  should  be  computed  on  the  balance  of  principal  thus  found 
to  be  due.^ 

(C)  Whci-e  the  payment  is  less  than  the  interest  due. 

If  a  payment  be  less  than  the  interest  due,  the  surplus  of  inter- 
est must  not  be  added  to  the  principal,  but  interest  continues  on  the 
former  principal  the  same  as  if  no  payment  had  been  made,  until 
the  period  when  the  payments,  added  together,  exceed  the  interest 

(a)  6  Johns.  Rep.  45.  See  3  Cowan's  Rep.  (c)  5  Ohio  Rep.  261,  263;  3  Cow.  Rep.  86  and 
38:3;  and  Id.RH,  and  n.  (a,  for  a  review  87,  n.  (a),  where  the  authorilies  are  coUect- 
of  rases  upon  tlie  suhjcct  of  interest  gene-                  ed;  and  see  3  Cow.  393. 

rally.  (d)   1  Johns  Chy.  Rep.  17;  2  Id.  213.  Wright's 

(b)  3  Cowen's  Rep.  393.  Rep.  169. 

(1)  The  arithmetical  rules  of  discount  will  solve  questions  of  this  kind. 


§2,  (A),(B),(C).]  U-STEREiT.  853 

due,  nnd  then  the  surplus  of  payments  is  to  be  applied  towards  dis- 
charging the  interest.  For  instance,  upon  a  note  for  one  hundred 
dollars,  piyable  in  one  year  witii  interest;  if  a  payment  of  ten 
dollars  is  mide  at  the  end  of  two  years,  arid  ten  dollars  at  the  ex- 
piration of  four  years,  and  nineteen  dollars  at  the  expiration  of  six 
years,  here  interest  on  the  whole  amount  of  the  note  should  be  cal- 
culated up  to  the  time  of  the  payment  of  the  nineteen  dollars,  and 
then  the  several  payments  sliouid  be  added  together,  and  deducted 
from  the  amount  of  the  principal  nnd  interest;  the  balance  would  be 
the  amount  due,  and  upon  which,  interest  should  be  afterwards  cora- 
puted.''(l) 

(a)   1  Johns.  Cl)y.  Rep.  17;  2  Id.  213;  Wri^lil's  Rep.  169. 


(1)   The  following-  c;ilculations  will  illustrate  the  rule  in  the  text. 

A,  by  his  note  dated  Jiinuary  1,  1840,  promises  to  pay  B,  §1000  dollars,  in  six 
months  from  the  date,  with  interest  from  tlie  date.  On  this  note  are  the  following' 
indorsemtrnts: 

Received  April  1,  1840,  21  dollars — August  1,  1840,  4  dollars. — December  1, 
1840,  G  dollars.  — February  1,  1841,  60  dollars.— July  I,  1841,  40  dollars. — June  1, 
1844,  300. — September  1,  1844,  12(loll.irs. — January  1,  1845,  15  dollars.— October 
1,  1845,  50  dollars. — And  the  judg-ment  is  to  be  entered  December  1,  1850. 

CALCCLATION. 

The  principal  sum  carryinp^  interest  from  January  1,  1840, §1000  00 

Interest  to  April  1,  1840,  3  months, '. 15  00 

Amount,  1015  00 

Paid  April  1,  1840,  a  sum  exceeding-  the  interest, 24  00 

Remainder  for  a  new  principal, 9U1   00 

Interest  on  991  dollars  from  April  1,   1840,  to  February  1,  1841, 

10  months, 49  55 

Amount,  1040  56 

Paid  August  1,  1840,  a  sum  less  than  the  interest 

then  dut- $4  00 

Paid  December  1,  1840,  do.  do 6  00 

Paid  February  1,  1841,  do.  greater  do. 60  00 

70  06 

Remainder  for  a  new   principal, 970  55 

Interest  oil  970  dollars  55  cents,  from  Fibiiiary  1,  1841,  to  July  1, 

1841,  5  monlhs, 24  20 

Amount,  994  81 

Paid  July  1,  1811,  a  sum  exceeding  the  interest, 40  00 

Remainder  for  a  new  pr'ncipal, 954  81 

lulcri-s'  on  9.54(lollarH  81  ci  iits,  from  JuU    !,  1841,  to  June  1, 

1844,  2ycar.~,  II  months, 1C7  00 

Amount,  11-21    90 

Paid  June  1,  1844,  a  siuTi  exceeding  the  in'crcst, 300  00 

Ri-maindi-r  for  a  n"W  pi-'ncl()al, 8"^'    90 

Interest  on  821  d. hilars  90  cen's  Irom  June  1,  1S44,  lo  October  I. 

1845,  1  year  and  4  months, 63  76 

[carried  over) 

46 


364  INTEREST.  [Pr/.  2,  Tif?e  24,  §3.] 

Sec.    III. TTHEN  INTEREST  UPON  INTEREST  MAT  RE  ALLOWED. 


Whoro  tliorc  is  a  scttlomont  of  accounts  l)Ctwcon  pnrlics,  after  in- 
terest has  become  clue,  ami  the  interest  is  charged  in  the  settleuient, 
interest  mny  be  allowed  upon  the  balance  found  due  by  the  settle- 
ment.* So,  an  agreement  after  interest  is  due,  to  turn  it  into  prin- 
cipal, is  valid.''  Where  there  i^  a  contract  between  parties  for  the 
payment  of  interest  annually,  if  it  be  not  paid,  interest  may  be  al- 
lowed annually  upon  the  interest  from  the  time  it  became  due.*^ 

(a)  1  Johns.  Cliy.  nep.  13.  550.  (!>)  6  Id.  313;  4  Oliio  Rrp.  373.  (c)  4  Id.  373. 


Amoimt  bronq-lu  forwartl g887  65 

Paid  Sf j)timl)t  r  1,  1844,  a  sum  less  lliun  the 

interest  tlien  due, $12  00 

Paid  .Trmuiirv  1,  181.5,  do.  do., 15  00 

Paid  Octdbei'  1,   184o,  do.  greater,  uilli  tlie 

two  last  payments,  than  interest  then  due,     50  00 

77  00 

Remainder  for  a  now  principal, 810  65 

Interest  od  810  dolhirs  65  cents,  from  October  1,  1845,  to  Decem- 
ber 1,  1850,  tile  time  when  judgment  is  to  be  entered,  5 
years,  2  months, 251  30 

Judgment  rendered  for  the  amount, 1061  95 


TITLE  XXV. 


LIENS.(l) 


If  a  person  have  possession  of  the  goods  or  effects  of  another, 
and  have  a  rig[it  to  retain  them  until  certain  charges  are  paid,  he 
is  Slid  to  have  a  lien  on  them. 

When  his  right  to  retain  the  pi'operty  is  merely  as  a  security  for 
certain  charges  incurred  with  regard  to  that  particular  property, 
and  no  other,  it  is  called  a  pcwticular  lien. 

When  a  person,  from  the  nature  of  his  occupation,,  receives  and 
is  at  trouble  or  expense  about  the  personal  property  of  another, 
he  has  a  lien  upon  it,  and  may  retain  it  until  his  reasonable  charges 
are  paid.*  Common  carriers  of  goods,  innkeepers,  blacksmiths, 
tailors,  dyers,  millers,  printers,  storage  merchants;  in  fine,  whoever 
in  the  way  of  his  trade  or  occupation,  takes  property  to  bestow 
labor  or  expense  upon  it,  has  this  right  to  retain  it;  and  it  extends 
to  the  whole  of  one  entire  work  upon  one  single  subject,  in  like 
manner  as  a  common  carrier  has  a  lien  on  the  entire  cargo  for  his 
whole  freight.**  The  lien  exists,  whether  there  be  an  agreement  to 
pay  a  stipulated  price,  or  only  an  implied  contract  to  pay  a  reason- 
able price,  unless  there  was  a  future  time  agreed  upon  for  the  pay- 
ment, which  would  be  inconsistent  with  the  right  to  retain  the  pos- 
session."^ 

There  is  no  lien  by  the  finder  upon  goods  found,  except  under 
the  statute  in  relation  to  strays;  but  the  finder  may  recover  by  suit 
a  reasonable  amount  for  his  trouble  and  expenses. 

No  lien  can  be  acquired  from  the  wrongi'ul  act  of  a  servant  who 
delivers  his  master's  goods  to  a  tradesman,  to  have  work  done  on 
them,  without  his  mastei-'s  orders:  and  the  master  may,  in  general, 
recover  the  articles  without  paying  for  such  labor.'' 

There  are  two  exceptions,  however,  to  this  rule: 

1,  Where  the  servant  acts  within  the  scope  of  liis  usual  employ- 
ment, the  master  will  be  bound,  though  the  act  of  the  servant  may 
be  wrongful  as  respects  the  master. 

2.  Where  the  law  compels  the  person  to  perform  the  act,  and 
does  not  allow  him  to  have  an  option  whether  he  will  receive  or 
reject  the  employment,  he  has  a  lien  co-extensive  with  a  reasona- 

(a)  G  East's  Rep.  523.  (C)  5  M.  and  d.  mO. 

(b)  3  Kent's  Com.  635.  (d)  4  Esp.  Hep-  174. 


(1)  A3  to  liens  by  mechanics,  laborers  and  furnishers,  tipon  houses  and  vcsseig 
in  the  counties  of  Hamilton,  Washinffton,  Montgomery,  Scioto,  Mubkingum  und 
Knox,  see  3d  vol.  Chute's  Stalutet,  2160,  CI,  62;  38  v.  L.  L.  H5. 


356  LiKNs.  Prt.  2, 

ble  cliarge  for  the  labor,  &c,,  which  he  is  compelled  to  bestow  and 
expend;  and  therelore,  an  innkeeper,  wlio  is  obliged  to  receive  all 
travelers,  and  keep  tlieir  iiurses,  il  he  have  conveniences,  has  a  lien 
upon  a  horse  put  in  his  st;ible  lor  the  expense  of  his  keeping,  and  a 
right  to  retain  him  against  the  owner,  though  lelt  at  the  inn  by  a 
thiel.'' 

Where  property  is  in  the  hands  of  nnotlier,  sul)jcct  to  a  lion,  it  is 
not  in  the  power  oi  the  owner,  by  assigning  it  over  to  a  third  person 
for  a  valuable  consideration  and  without  notice,  to  deprive  the  per- 
son in  possession  of  the  goods  of  his  lien  upon  thoin.'' 

Possession  of  the  property  is  not  only  necessary  to  the  creation, 
but  also  to  the  existence  ot  a  lien;  and  when  tlie  party  voluntarily 
parts  with  the  possession,  he  is  divested  of  his  lien. 

It  is  a  singular  principal  of  law,  that  the  person  who  holds  pro- 
perty to  secure  his  chaiges,  cannot  sell  it. 

The  person  who  has  a  lien,  cunnot  retain  the  property  for  the 
security  of  any  other  debt  or  claim  than  the  charges  incurred  in 
relation  to  the  identical  goods. 

A  factor,  or  general  agent,  however,  who  receives  goods  from 
time  to  time  from  his  principal,  to  sell,  has  a  lien  upon  the  goods 
sent  to  him  for  the  amount  of  the  general  balance  due  him  from  his 
principal,  as  well  on  account  of  disbursements,  advances,  per  cent- 
age,  &:c.,  as  other  claims  not  incident  to  the  agency.  This  is  an 
exception  to  the  general  rule;  and  no  such  general  lien  exists,  un- 
less there  is  an  established  custom  of  the  kind,  or  unless  it  grows 
out  of  the  contract  between  the  parties. 

Where  a  person  has  possession  of  the  property  of  another,  he 
may,  in  general,  sue  any  wrong-doer  who  injures  the  property  while 
in  his  possession.  If  the  owner  of  the  property,  or  a  person  acting 
under  the  direction  of  the  owner,  take  it  while  the  lien  subsists,  and 
without  the  consent  of  the  creditor  who  holds  it  on  account  of  his 
charges  or  lien,  he  may  sue  the  owner,  or  such  third  person,  in  tro- 
ver, and  will  recover  in  damages  the  amount  of  the  charges  upon 
the  property;  or  if  they  exceed  its  value,  then  the  value  of  the  pro- 
perty.*^ But  if  any  other  wrong-doer  take  the  property,  the  creditor 
will  recover  the  lull  value  of  the  property,  though  it  exceed  his  lien; 
being,  in  such  case,  answerable  over  to  the  owner,  (after  deducting 
his  charges,)  for  the  balance.^ 

The  creditor,  however,  may,  where  property  is  wrongfully  taken 
by  the  owner  or  his  agent,  sue  for  the  debt,  (which  is,  in  general, 
the  best  course,)  instead  of  bringing  an  action  of  trover  for  the 
■wrongful  conversion  of  the  property. 


OF  THE  LIEX  OF  THE  SF.T.LKR  UPON'  GOODS  SOI.r". 

The  seller  of  goods  upon  credit,  if  the  buyer  becomes  insolvent, 
has  a  right  to  take  possession  of  them,  while  they  are  in  the  hands 
of  the  carrier  or  middle  man,  in  their  transmission  to  the  buyer,  and 

(a)  2  I-d.  R«y.  8(57.  (t)  7  Cow.  Rpp.  G70. 

(h)  1  Burr.  489  («I)  5  Binn.  ^   7;  7  Cow.  G70.  GRl,  n.  (a). 


Title  25.]  LIENS.  357 

before  they  come  into  his  actual  possession.*  The  same  right  ex- 
ists for  the  balance  due,  when  there  has  been  a  part  payment.^ 

It  is  the  seller  alone,  and  not  his  surety  for  the  price,  who  can 
exercise  this  right ;'^  and  the  seller  can  do  it  only  for  the  purpose  of 
protecting  himself  against  the  insolvency  of  the  buyer.**  A  demand 
of  the  goods  by  the  seller  of  the  carrier,  or  claim  and  endeavor  to 
get  possession,  will  be  deemed  a  taking  possession  sufficient  to  sus- 
tain the  lien.*^ 

If  the  goods  have  actually  arrived  at  the  place  of  destination,  so 
as  to  give  the  buyer  the  actual  exercise  of  dominion  and  ownership 
over  them,  the  right  of  stopping  them  is  gone.^ 

(a)  5  Ol  in  rpp.  fiR.  (e)  2  E?p.  Rep.  613;  2  Eng.  C.  L.  Rep.  64;  2  Eos. 
(bj  7  'I'.  R.  J'JO  ;  3  Ensf,  93.  and  Piil.  47 1. 

(c.  6  r.nst,  .S71.  (g)  4  Esp.  Rep.  82. 
[A)  2  Kem's  Com.  543. 


TITLE  XXVI. 


LIMITATION  OF  CIVIL  ACTIONS. 


The  statute  for  the  limitation  of  actions,*  so  far  as  the  same  ope- 
rates upon  suits  before  justices  of  the  peace,  will  be  here  examined. 


SECTION    I.       WITHIN  AVHAT  TIME  ACTIONS  MUST  BF-  COMMENCED. 
11.      AT  WHAT  PERIOD  THE  STATUTE  BEGINS  TO    RUN. 
HI.    OK  THE  EXCEPTIONS  IN  THE  STATUTE,   AND  WHAT  ACTS  PRE- 
VENT rr  FROM  OPERATING  OR  RUNNING. 


Sec  I. WITHIN   WHAT  TIME  ACTIONS  MUST  BE  COMMENCED. 

Actions  must  be  commenced  within  the  several  times  following, 
after  the  cause  of  action  sh;ili  have  acci'ued: 

First.  Actions  for  forcible  entiy  and  detainer,  or  forcible  de- 
tainer only,  within  two  years. 

Second.  Actions  upon  the  case,  covenant,  and  debt,  founded 
upon  a  specialty,  or  instrument  under  seal,  or  upon  any  contract, 
agreement,  or  promise,  in  writing,  within  fifteen  years. 

Third.  Actions  upon  the  case,  and  debt,  founded  upon  any  con- 
tract not  in  writing,  and  actions  on  the  case  for  consecjuential  dam- 
ages, within  six  years. 

Fourth.  Actions  of  trespass  upon  real  or  personal  property,  de- 
tinue, and  trover,  within  four  years. 

Fifth.  Actions  against  officers  for  malfeasnnce  or  nonfeasance 
in  office,  and  actions  of  debt  (ph  tarn.,  within  one  year. 

Si-rth.  All  other  actions,  over  which  justices  of  the  peace  have 
jurisdiction,  and  not  above  enumerated,  within  four  years. 

Seventh.  But  when  an  action  for  a  forfeiture  or  penalty  is  given, 
and  limited  by  a  statute,  that  action  must  be  commenced  within  the 
time  so  limited. 


Sec   II. AT  WHAT  PERIOD  THE  STATUTE  BEGINS  TO  RUN. 

It  will  be  observed,  that  the  statute  recfiiires  that  the  suit  shall  be 
commenced  within  a  certain  number  of  years  after  the  cause  of  ac- 
tion accrued;  or  in  other  words,  within  a  certain  number  of  years 

(a)  Stat.  553. 


\_Prt.  2,  Title  26,  §  1 , 2.]  LDriTAxroN  of  actions.  359 

after  the  plaintiff  had  a  right  to  bring  an  action.  The  time  mentioned 
in  the  statute  does  hot  begin  to  run  until  there  is  a  complete  cnuse 
of  action.  If  I  make  to  you  my  promissory  note,  payable  in  fifty 
years  from  dat€,  you  have  no  right  to  sue  me,  and  no  cause  of  ac- 
tion accrues  to  you,  until  the  expiration  of  the  fifty  years;  and  con- 
sequently, the  statute  does  not  begin  to  run  until  the  note  is  actu- 
ally due.  If  no  suit  is  commenced  within  fifteen  years  after  the  ex- 
piration of  the  fifty  years,  your  action  will  be  barred  by  the  statute. 
If  I  make  to  you  my  promissory  note,  payable  three  days  after  sight, 
no  cause  of  action  arises  on  it  until  the  note  is  presented  to  me  for 
payment,  for  it  is  not  due  until  then:  and  therefore,  the  statute  does 
not  begin  to  operate  until  the  three  davs  have  expired,  after  sight.* 
Although  a  promissory  note  payat)Ic  orKdcmnnd  is  so  far  due  imme- 
diately, that  suit  may  be  bi;«AjD|i^t  upon  it  without  demand,  and  the 
moment  it  is  executed,  y.^  the  ^statute  of  limitations  does  not,  it 
seems,  begin  tQji^i^iipon  it  iV^m  its  date,  but  from  the  time  of  de- 
mand.'' 0  ^ 

When  the  contract ^^  promise  is  such,  that  there  is  no  breach  of 
it  until  a  reqiiest><!fr  dema4id  is  made,  the  action  may  be  commenced 
within  the  pfiaod,  mentioned  in  the  statute  after  the  request  has  been 
m:ide.'^      ""-'     ,. 

So?  if  you  agree  to  pay  mo  fifty  dollars  when  S  marries,  and  forty 
yeai's'afterwai'ds,  S  marries;  the  right  of  action  accrues  immediate- 
ly after  the  marriage,  and  not  at  the  time  of  the  promise.'' 

When  the  breach  of  a  contract  is  attended  with  special  damages, 
the  statute  runs  from  the  time  of  the  breach,  and  not  from  the  time 
when  it  was  discovered.''  Thus,  where  the  defendant,  a  surveyor, 
■was  employed  to  survey  lands,  and  did  it  unskillfully,  which  the 
plaintiff  did  not  discover  until  more  than  fifteen  years  afterwards, 
and  then  sued;  the  cause  of  action  having  accrued  immediately  af- 
ter the  survey,  the  plaintiff  was  held  to  be  barred  of  his  action.^ 

In  an  action  of  trover,  the  cause  of  action  arises  when  the  de- 
fendant converts  the  goods  to  his  own  use.  A  conversion  takes 
place,  either  by  a  detention  of  goods  and  a  refusal  to  deliver  them 
up  to  the  owner,  when  the  original  possession  was  not  wrongful;  or 
where  the  goods  are  w-rongfully  taken  and  carried  away.  Thus:  I 
leave  goods  with  you,  which  you  use;  and  after  four  years,  I  demand 
the  goods,  and  you  refuse  to  deliver  them.  I  may  sue  you  any  time 
within  four  years  after  the  demand;  but  if  you  had  w'rongfully  taken 
and  used  the  goods,  I  must  have  sued  you  within  four  years  from 
the  time  you  wrongfully  took  them.'' 

Where,  from  the  commencement  to-  the  termination  of  an  ac- 
coimt,  charges  have  been  made  at  least  as  often  as  once  in  six  years, 
and  the  last  item  is  within  six  years  before  the  commencement  of 

(n)  2Tniint.  32,3.  (li)  II.  T11.fi3I. 

(b)  Wri.'ht's  Kep.  342.  .526.  nH2;  16  En?.  C.  (e)  6  Ensr.  •'.  L.  Pep.  25;  5  Id.  283.  403.  Con- 

L.  Rpp.  344.   rontrn.  Christie  vs  Fons-  tr.T,  3  Pirk.  74. 

J  Tvir.k,Selw.N.r.  136,  cited  in  Rob.  Ev.  (r)  20  Johns.  Rep.  3.J;  4  Oliio  Rep.  332. 

254.  (h)  7  Mod.  Rep.  99;  4  Esp.  Rep.  20. 
(e)  1  Taunt.  572. 


360  LIMITATIONS  OF  ACTioiss.  Pi't.  2,  Title  26, 

the  suit,  the  whole  of  the  account,  if  proved,  is  to  be  allowed,  not- 
withstanding that  the  defendant  sets  up  the  statute  of  limitations  as 
a  defence.* 

But  when  an  accomit  has  been  stated,(l)  and  the  balance  carried 
forward  to  a  new  account,  it  is  no  Ioniser  a  runninij;  account,  and 
the  statute  begins  to  run,  against  the  old  account,  from  the  time  of 
so  stating  it.** 

In  all  "actions  not  founded  u]ion  a  contract,  but  for  a  wrong,  or 
injury,  the  statute  does  not  begin  to  run  until  the  cause  of  action  is 
complete. (2) 

Besides  a  complete  cause  of  action  where  there  is  a  contract 
or  wrong,  it  is  also  necessary,  be^re  the  statute  begins  to  run,  tliat 
there  should  be  some  person  existing  wlio  is  legally  entitled  to,  or 
capable  of  demanding  and  receivin^the  thing  in  question,  and  suing 
for  it.'  But  if  a  note  becomes  due,  or  a  cause  ofcaction  is  com|)lete, 
in  the  lifetime  of  the  decedent,  the  statute  begins  to  run  i'roni  the 
time  there  was  a  right  to  sue,  and  not  from  the  time  of  granting 
administration,  or  letters  testamentary.'^  If,  however,  the  cause  of 
action  accrued  after  the  death  of  the  decedent,  the  executor  has 
the  time  mentioned  in  the  statute  after  the  cause  of  action  accrued; 
and  an  administrator  has  the  same  time  after  the  cause  of  action 
accrued,  or  from  the  grant  of  administration — whichever  event  be 
latest  in  time. 


8eC.  III. OK  THE  EXCKPTIONS  IN  THE  STATUTE,  AND  WHAT  ACTS  PRE- 
VENT IT  FROM  OPERATING  OR  RUNNING. 


The  statute  provides,  that  if  any  person  entitled  to  bring  any  of 
the  actions  above  mentioned,  '••shall  at  the  time  such  cause  of  action 
accrued,  be  within  the  age  of  twenty-one  years,  feme  covert,  insane, 
or  imprisoned;  every  such  person  shall  be  at  liberty  to  bring  such 
action,  within  the  respective  times  limited  by  the  act  after  such  disa- 
bility is  removed.*  So,  when  any  person  shall  have  lel't  the  State,  and 
remained  out  of  the  same;  or  shall  reside  out  of  the  State  at  the  time 
any  cause  of  action  shall  have  accrued  against  him,  the  person  who 

(a-)  9  Wend.  Rep.  126;  7  Id.  322.  (d)  fi  Ohio  Rep.  42;  Willes,  27. 

(h    .■?  Pick.  Hep.  98.  (e)  Slat.  554,  $2. 

(c)  7  Eng.  C.  1-.  Rep.  66;  10  Yes.  93. 


(1)  As  what  is  an  account  stated,  see  page  347,  note  (1). 

(2)  It  will  be  perceived,  from  what  is  s:iid  in  tlie  text,  that  a  party  cannot  sue 
upon  a  contract  until  tliere  has  been  a  failure  on  tlie  part  of  tlie  (leliiid;int  U)  per- 
form it;  nor  for  an  injury,  until  the  injury  has  been  actually  conunitted.  There- 
fore,  if  B  purchase  goods  of  A  upon  credit,  fraudulently  intending,  at  the  time  of 
the  contract,  not  to  pay  for  them;  A  cannot,  on  that  account,  sue  H  for  the  debt 
before  the  credit  expires.  Rut  A,  in  such  case,  coidd  treat  the  contract  as  vo.d, 
on  account  of  the  fraud,  and  immediately  bring  an  action  of  trover  for  the  value 
of  the  goods.      17  Eng.  C.  L.  Rep.  330-  1.5  Mass.  Rep.  350. 


§3.]  LDIITATION  OF  ACTIONS.  361 

may  have  such  cause  of  action,  shall  have  a  right  to  commence  hia 
action  against  such  person,  within  such  time  as  is  limited  as  afore- 
said, after  his  return  or  removal  to  the  State.*  It  will  be  perceived, 
that  the  disabilities  on  the  part  of  the  plaintiff,  above  mentioned, 
which  prevent  the  statute  from  operating  for  a  certain  time,  relate 
to  cases  where  the  disability  to  sue  existed  at  the  time  the  cause  of 
action  accrued.  For  this  reason,  it  has  been  decided,  that  when 
the  statute  begins  to  run,  no  subsequent  disability  stops  it.  That  is, 
if  the  party  has  at  one.  time  a  complete  right  and  power  to  sue,  and 
afterwards  becomes  insane,  or  imprisoned,  or  the  defendant  takes 
up  his  residence  in  another  State,  &c.;  the  statute  runs  against  the 
claim  in  the  same  manner  as  if  the  party  never  labored  under  any 
disability,  or  the  defendant  always  resided  in  the  State,  8lc.  For 
instance,  you  now  make  to  me  your  note  for  fifty  dollars,  payable 
immediately,  and  next  week  I  become  insane;  as  my  cause  of  action 
accrued  before  I  became  insane,  the  case  does  not  come  within  the 
statute,  and  my  right  of  action  is  barred,  if  suit  is  not  brought  with- 
in fifteen  years.  Therefore,  a  party  claiming  the  benefit  of  these 
provisions  of  the  statute,  can  only  avail  himself  of  a  disabUity  exist- 
ing when  his  right  of  action  accrued. ** 

But  the  statute  further  provides,  that  where  a  person  removes  to 
any  place  unknown  to  the  person  in  whose  favor  a  cause  of  action 
exists,  '•'•during  such  time  as  is  limited  by  the  act^  the  person  who 
may  have  such  cause  of  action  shall  have  a  right  to  commence  his 
action  against  such  person  within  such  time  as  is  limited  as  afore- 
said, after  his  place  of  residence  shall  have  become  known."'  This 
provision  seems  intended  to  prevent  debtors  escaping  from  the  pay- 
ment of  debts  by  running  away;  and  such  a  construction  will  pro- 
bably be  given  to  it,  that  when  the  person  against  whom  a  right 
of  action  exists  actually  removes  to  a  place  unknown,  though  after 
the  cause  of  action  accrued,  he  may  be  sued  within  the  time  limited 
by  the  act,  after  his  residence  becomes  known.*^ 

If  an  action  is  commenced  within  the  time  limited  by  the  act, 
and  the  judgment  is  arrested,  or  reversed,  or  the  suit  abates  by  the 
death  of  the  defendant  or  otherwise,  or  the  plaintifi'  becomes  non- 
suit, and  the  time  limited  by  the  act  afterwards  expire,  the  plaintiff 
may  commence  a  new  action  within  one  year  after  such  arrest  or 
reversal  of  judgment,  nonsuit,  or  abatement  of  the  action,  and  not 
after.® 

The  statute  provides,  that  in  all  actions  founded  on  contract,(l) 
either  express  or  implied,  when  any  part  of  the  principal  or  interest 
shall  have  been  paid,  or  an  acknowledgment  of  an  existing  liabil- 
ity, debt,  or  claim,  or  any  promise  shall  have  been  made,  within 
the  time  above  mentioned  and  limited,  such  action  may  be  com- 
menced within  the  time  limited  as  above  stated  after  such  payment, 

(a)  Stat.  555,  $7;  Wright's  Rep.  525.  (c)  Stat.  555,  $7. 

(b)  18  Johns.  Rep.  40;  6  Ohio  Rep-  42;  9  Olilo     (d)  9  Oliio  Itcp.  3G. 

Rep.  34.  (c)  Slat.  555,  $6. 

(1)  As  to  what  19  included  within  the  term  contract,  see  pajjc  281. 
46 


362  LIMITATION  OF  ACTIONS.     [Prt.  2,  Title  26,  §3.] 

acknowledgmpnt,  or  promise.®  The  ncknowledgment  must  be 
such  as  admits  an  existing  liability.  Ji,  thereibre,  there  be  any- 
thing said  at  the  time  of  the  acknowledgment  to  repel  or  destroy 
the  inference  of  an  admission  that  the  defendant  is  bound  to  pay 
the  claim,  such  acknowledgment  will  not  take  the  case  out  of  the 
statute,  but  it  will  continue  barred. ^  The  acknowledgment,  prom- 
ise, or  p;'vment,  by  one  of  the  several  uiakers  of  a  joint  and  seve- 
ral promissory  note,  is  binding  on  the  others,  and  may  be  given  in 
evidence  in  a  suit  against  all  or  either  of  them.''  So,  a  letter  from 
one  of  the  makers  of  such  note  to  another  of  the  makers,  desiring 
him  to  ''settle  the  money,"  is  a  suilicient  acknowledgment,'  An 
express  and  unequivocal  acknowledgment  by  one  partner  of  an 
existing  claim  against  the  partnership,  will  bind  the  firm.'' 

(e)  Slat.  555.  $6.  (i)  3  Cnmp.  32. 

(g  '   1 1  Ens.  «'-  h.  Rep.  127,  per  Bkst,  C.  J.  (k)  2  Eng.  C.  L.  Rep.  480. 

(h)  Doug.  G52. 


TITLE  XXVII. 


MARRIAGES. 


Males  of  the  age  of  eighteen  and  upwards,  and  females  of  the  age 
of  fourteen  and  upwards,  not  nearer  of  kin  than  first  cousins,  and 
not  having  a  husband  or  wife  living,  may  be  joined  in  marriage.* 
But  male  persons  under  the  age  of  twenty-one,  and  females  under 
eighteen,  must  first  obtain  the  consent  of  their  fathers,  or  in  case  of 
the  incapacity  or  death  of  their  fathers,  then  of  their  mothers  or 
guardians.* 

Ten  days  previous  to  a  marriage,  and  on  two  different  dnys  of 
public  worship,  notice  must  be  given  in  the  presence  of  the  congre- 
gation, of  the  intended  marriage;  or  a  license  must  be  obtained 
from  the  clerk  of  the  court  of  common  pleas,  in  the  county  where 
the  female  resides.'' 

The  certificate  of  the  marriage  must  be  made  out,  and  signed  by 
the  justice  or  minister  solemnizing  the  same,  and  transmitted  to  the 
clerk  of  the  county,  within  three  months  thereafter  (1)  who  must 
record  the  same.'^  The  justice  or  minister  failing  to  transmit  the 
certificate  within  that  time,  subjects  himself  to  a  forfeiture  of  fifty 
dollars;  and  if  the  clerk  neglects  to  make  out  the  record,  he  subjects 
himself  to  a  forfeiture  of  the  like  amount.'^ 

If  a  person  not  legally  authorized,  attempts  to  solemn-ze  mar- 
riages, he  subjects  himself  to  a  forfeiture  of  five  hundred  dollars.  So, 
if  a  justice  or  minister  solemnize  the  same,  contrary  to  the  true  in- 
tent and  meaning  of  the  statute  regulating  marriages,  upon  convic- 
tion, he  forfeits  not  exceeding  one  thous  uid  dollars.''  These  fines 
are  recovered  by  a.n  action  of  debt  or  indictment,  with  costs  of  suit, 
in  any  court  of  record,  having  cognizance  of  the  same.* 

Except  in  cases  where  a  license  has  been  obtained  from  the  clerk 
of  the  court  of  common  pleas,  the  justice  or  mm-ster,  before  he  mar- 
ries the  parties,  should  be  satisfied  that  publication  of  the  bans  has 
been  duly  made  in  church;  and  where  the  consent  of  the  parent, 

(a)  Stat.  5R2,  51.  ((i)  Id.  ih.  $9. 

(b)  Id.  ih.  $6.  (e)  Id.  5B4,$11. 

(c)  Id.  583,  $3. 

(1)  Form  of  a  certificute  of  a  man-iage: 
County,  ss. 

On  the day  of ,  in  tlie  year ,  I  solemnized  the  marri:iR-e  of  A 

B ,  with  C —  D . 

G II ,  J.  «•■ 


3G4  MARuiAGES.  [Prt.  2,  Title  27.] 

guardian,  or  mother,  is  necessary,  that  it  has  been  obtained.  For 
this  purpose,  the  justice  or  minister  slioukl  liave  either  their  personal 
consent,  or  their  written  consent,  under  their  signature,  attested  by 
one  or  more  cre(Uhle  persons,  who  must  personally  ap|)ear  before 
the  justice  or  minister,  to  testify  that  the  written  consent  was  actu- 
ally signed  by  the  parent  or  guardian.'' 

No  particular  form  of  marriage  ceremony  is  retiuired  by  law; 
The  following  may  be  adopted. 

If  any  one  can  show  just  cause,  why  these  two  persons  should 
not  be  lawfully  joined  together  in  the  holy  bands  of  matrimony,  let 
them  now  publicly  declare  it.  [T/ie  persons  to  he  married  joining 
fiands,  —  say  to  the  nuni,]  Wilt  thou  have  M —  R — ,  to  be  thy  wed- 
ded wife?  Wilt  thou  love  her,  comibrt  her,  honor  and  keep  her,  in 
sickness  and  in  health,  and  forsaking  all  others,  keep  thee  only  to 
her,  so  long  as  ye  both  shall  live?  Dost  thou  promise  this  in  the  pres- 
ence of  Almighty  God,  the  searcher  of  all  hearts. 

[To  the  woman  •]  Wilt  thou  have  this  man  to  be  thy  wedded  hus- 
band? Wilt  thou  obey  him,  love,  honor,  and  keep  him,  in  sickness 
and  in  health,  and  forsaking  all  others,  keep  thee  only  unto  him,  so 
long  as  ye  both  shall  live?  Dost  thou  promise  this  in  the  presence 
of  Almightv  God.  the  searcher  of  all  hearts? 

Forasmuch  as  M — ,  and  N — ,  have  pledged  their  troth  in  holy 
wedlock,  I  pronounce  that  they  are  man  and  wife.  Those  whom 
God  hath  joined  together,  let  no  man  put  asunder. 

(a)  Stat.  583,  $10. 


TITLE  XXVIII. 


PARENT  AND  CHILD. 


The  father  is  bound  to  support  his  minor  children,  (males  until 
they  arrive  at  twenty-one,  and  females  until  they  arrive  at  eighteen 
years  of  age,"*)  even  though  they  have  property  of  their  own. 

When  the  father  has  little  or  no  property  of  his  own,  and  takes 
the  guardianship  of  his  children  so  situated,  he  will  be  allowed  by 
the  court  a  reasonable  charge  out  of  their  estate  for  maintaining 
them.''  A  widow,  however,  is  not  bound  to  support  her  children 
if  they  have  property.  In  either  case,  the  obligation  ceases  the 
moment  the  child  arrives  to  years  of  maturity,  however  wealthy 
the  parent  may  be. 

The  father,  unless  appointed  guardian  by  the  court,  has  no  autho- 
rity to  lease  or  receive  the  rents  and  profits  of  his  child's  land;"  nor 
has  he  any  control  over  the  personal  property  of  the  child.  The 
father  is  not  bound  by  the  contract  of  his  child,  even  for  articles 
suitable  and  necessary,  unless  an  actual  authority  to  make  the  pur- 
chase be  proved,  or  the  circumstances  be  sufficient  to  imply  an  au- 
thority. What  is  necessary  for  the  child,  is  left  to  the  discretion  of 
the  parent;  and  if  a  child  lives  with  the  parent,  or  is  under  his  con- 
trol, there  must  be  clear  proof  of  an  omission  of  duty  on  his  part, 
to  supply  necessaries,  before  a  third  person  can  interfere  to  furnish 
them  and  charge  the  father.  It  is  therefore  incumbent  on  a  trades- 
man, before  he  trusts  an  infant  with  what  may  appear  necessaries, 
to  inquire  whether  he  is  provided  by  his  friends.  For  if  proper 
clothes  are  supplied  to  an  infant  by  his  father,  others  furnished  in 
addition,  cannot  be  considered  necessaries.  The  education  of  an 
infant,  when  placed  at  a  school  by  his  parents,  is  not  deemed  a  ne- 
cessary to  charge  him,  for  it  shall  be  implied  that  credit  was  given 
to  his  parents  only. 

If  the  father  suffer  the  children  to  remove  abroad  with  their 
mother,  or  if  he  force  them  from  home  by  severe  usage,  he  is  liable 
for  their  necessaries.  He  may  sue  for  a  personal  injury  done  to 
them,  provided  he  can  show  a  loss  of  service,  for  that  is  the  ground 
upon  which  he  can  alone  maintain  the  action. '' 

He  is  entitled  to,  and  may  sue  for  and  recover  the  value  of  the 
services  and  labor  of  his  children,  during  their  minority.*  But 
when  a  minor  makes  a  contract  for  his  services  on  his  own  account, 

(a)  Stat.  430.  (b)  4  Mass.  97. 

(c)  7  Cow.  Hop.  3C;  2  Wcnd.  Rep.  153;  Co.     (d)  4  B.  ,!;•  C.  660. 

Lit.  Lib.  2,  ch.  5,  $123,  note  (12).  (e)  Wright's  Rep.  547.  751. 


366  PARENT  AND  CHILD.  [Prt.  2,  Title  28.] 

and  the  father  knows  of  it,  and  makes  no  objection  at  the  time,  the 
child  is  entitled  to  his  earnings,  and  may  sue  for  them  in  his  own 
name;  and  payment  to  the  child  will  be  a  discharge  against  the 
parent.*  It  follows  that  a  father  may,  by  agreement  with  his  minor 
child,  rclin([uish  to  the  child  the  right  which  he  would  otherwise 
have  to  his  services,  and  authorize  those  who  employ  liim,  to  pay 
him  his  own  earnings.'' 

The  father,  and  on  his  death  the  mother,  is  generally  entitled  to 
the  custody  of  infant  children.  The  court  of  common  pleas  may, 
when  the  morals,  or  safety,  or  interest  of  the  children  strongly  re- 
quire it,  withdraw  them  from  the  custody  of  the  father  or  mother, 
and  place  the  care  and  custody  of  them  in  guardians.'^(l) 

A  child  who  continues  to  live  with  his  parents  after  he  is  of  age, 
without  stipulating  for  wages,  and  draws  his  subsistence  from  the 
family,  is  not,  in  law,  presumed  to  work  for  pay,  and  he  cannot, 
when  disappointed  in  his  fathers  will,  sue  for  wages.''  In  general, 
however,  where  one  man  does  work  for  another,  the  law  implies  a 
promise,  (though  none  in  fact  e.xist,)  to  pay  what  the  work  is  worth. 
And  if  a  parent  employ  his  son,  who  is  of  age,  to  work  for  him,  and 
promise  to  pay  for  the  labor,  the  law  will  enforce  the  agreement. 

(a)  3  Pick.  Rep.  201;  2  Mass.  Rep.  115;  7  Cow.  92.         (c)  Stat.  430. 

(b)  Wright's  Rep.  547.  (d)  Wright's  Rep.  89;  1  Esp.  187. 


(1)  There  i.s  a  statute  in  tlie  State  of  Connecticut,  which  provides,  that  if  pa- 
rents will  not  teach  tlieir  children  the  elements  of  knowledge,  by  causing  them  to 
read  the  English  tongue  well,  and  to  know  the  laws  against  capital  <.ft'cnces,  the 
selectmen  of  the  town  shall  take  their  children  from  sucli  parents,  and  bind  them 
out  to  proper  masters,  where  they  will  be  educated  to  some  useful  eni[)loyment, 
and  will  be  tauglit  to  read  and  write,  and  the  rules  of  arithmetic  necessary  to 
transact  ordinary  business.      This  is  a  wise  law. 

The  parent  who  brings  up  his  child  without  education,  and  without  skill  in  any 
art  or  science,  defrauds  the  community  of  a  useful  citizen,  entails  disgrace  upon 
his  family,  and  bequeaths  to  the  community  a  nuisance. 


TITLE  XXIX. 


PARTNERSHIP. 


SECTION  I.        WHAT  CONSTITUTES  A  PARTNERSHIP. 

II.  EXTENT  OF  PERSONAL    LIABILITY    OF    EACH,    AND  WHO  MAY  BE 

CHARGED  AS   A  PARTNER. 

III.  POWER  OF  EACH  PARTNER  TO  BIND  THE  FIRM. 

(A)  By  bill  of  exchange^  or  promissory  note. 
{B)  By  sale^  contract^  deed^  Sfc. 

IV.  OF  THE  DISSOLUTION  OF  A  PARTNERSHIP,    AND  THE  POWERS  OF 

A  PARTNER  THEREAFTER. 

V.  ACTIONS  BY  AND  AGAINST  PARTNERS. 

VL  OF  WRITS  OF  EXECUTION  AGAINST  PARTNERS. 


Sec.  I. WHAT  CONSTITUTES  A  PARTNERSHIP. 

Partnership  is  a  contract  of  two  or  more  persons,  to  place  their 
money,  effects,  labor,  and  skill,  or  some  or  all  of  these,  in  a  lawful 
business,  and  to  divide  the  profits  and  bear  the  loss,  either  equally, 
or  in  certain  proportions.  Each  party  must  engage  to  bring  into 
the  common  stock  something  that  is  valuable.  The  whole  capital 
may  be  advanced  by  one  party,  and  the  other  contribute  his  labor 
and  skill,  and  share  the  profits  and  loss,  either  equally  or  unequally. 
But  there  must  be  a  communion  of  profits  to  constitute  partnership;* 
therefore,  a  joint  purchase  of  property  without  a  joint  concern  in 
the  future  sale,  does  not  constitute  a  partnership.'^ 

If  the  purchases  are  separate,  and  tlip  property  afterwards  joined 
with  a  view  to  sales,  a  partnership  will  exist  from  the  time  the  pro- 
perty is  brought  into  a  common  mass.*^  It  must  be  observed,  that 
these  rules  are  more  particularly  applicable  to  a  question,  arising 
between  two  persons,  relative  to  the  existence  of  a  partnership  be- 
tween them;  for,  as  to  the  rest  of  the  world,  a  person  may  in  some 
cases  be  liable  as  a  partner,  even  though  he  have  no  int(  rest  what- 
ever in  the  firm;  as  will  be  seen  fi'jm  what  is  said  in  the  next  sec- 
tion. 

(a)  3  Kent's  Com.  24.  (c)  0  Scrg.  and  Rawie,  103. 

((»_)  1  H.  Blacks.  37;  Doug.  371. 


368  PARTNERSHIP.  [Prt.2,  Title  20, 


Sec.  II. EXTENT  OF  PERSONAL  LIABILITY  OF  EACH  PARTNER  FOR  THE 

PARTNERSHIP  DEBTS,  AND  WHO  MAY  BE  CHARGED  AS  A  PART- 
NER. 


Partners  sometimes  stipulate  in  their  articles  of  partnership,  that 
one  or  the  other  is  not  to  be  responsible  for  the  engagements  of 
the  concern,  in  their  regular  business,  except  to  a  certain  limited 
amount.  Such  a  stipulation  is  obligatory  upon  the  parties  them- 
selves, but  neither  controls  nor  limits  their  liability  to  third  persons. 
Each  individual  member  of  the  firm  is  answerable  for  the  whole 
amount  of  debts  legally  incurred  by  the  concern,  whatever  stipu- 
lation there  may  be  to  tiic  contrary,  between  him  and  his  associ- 
ates; or  however  small  his  interest  in  the  capital,  or  profits  or  loss.^ 

The  only  way  in  which  a  partner  can  limit  his  personal  responsi- 
bility, is,  by  an  express  stipulation  to  that  elicct,  made  with  the  par- 
ty with  whom  the  firm  contracts  the  debt.''(l) 

Even  where  it  is  the  intention  of  parties  not  to  be  partners,  and 
the  person  to  be  charged  was  not  to  contribute  either  money,  labor, 
or  time,  or  to  receive  any  part  of  the  profits;  yet  if  he  lend  iiis 
name  as  a  partner,  or  sutler  his  name  to  continue  in  the  firm  after 
he  has  ceased  to  be  an  actual  partner,  he  is  responsible  to  creditors 
of  the  firm  and  to  third  persons;  for  he  may  have  induced  them  to 
give  that  credit  to  the  firm  which  it  would  not  otherwise  have  re- 
ceived or  perhaps  deserved.*^  The  law  is  so  strict  on  this  point, 
that  even  if  executors,  in  the  disinterested  performance  of  a  trust, 
continue  the  testator's  share  in  a  partnership,  for  the  benefit  of  his 
infant  children,  they  may  render  themselves  personally  liable,  as 
dormant  partners. ""(a)  If  a  firm  contract  a  debt,  and  the  person  to 
whom  it  is  due  afterwards  discover  tliat  there  is  a  secret  or  dor- 
mant partner,  who  participates  in  the  profits  of  the  trade,  such  cre- 
ditor, or  any  other  person,  may  sue  the  firm  and  the  dormant  part- 
ner jointly,  and  the  latter  is  ecjally  responsible  with  the  other  mem- 
bers of  the  firm."'  A  person  holding  a  claim  against  a  partnership, 
by  discharging  or  releasing  one  of  the  partner's  from  liability,  will 
thereby  discharge  all.^ 

(a)  4  Sets,  and  Rawle,356;  9  East,  516;    3         (c)  16  Johns.  Rep.  40;  4  East,  144;  6  Serg.  and 
Kent's  Com.  26.  Rawie,  259.  3.-]3;  Douf;.  371. 

(b)  4  Sers.  and  Raw.  491;  19  Johns.  Rep.  537.     (e)  4  Mass.  424;  2  Taunt.  324;  9  Pick.  272. 
(d)  1  Maule  and  Selw.  412.  (g;  Wright's  Rep.  220. 


(1)  To  allow  a  clerk  or  ag"ent  a  portion  of  the  profits  of  sales,  as  a  compensa- 
tion for  labor,  docs  not  render  him  a  partner,  provided  it  be  merely  a  mode  of 
payment  adopted  to  increase  exertion.     4  East,  144;  3  £ng.  C.  L.  Hep.  270. 

(2)  Dormant  partner,  sometimes  called  a  sleeping-  partner,  is  one  whose  name 
does  not  appear  before  the  public  as  a  partner. 


§2,  3,  (A).]  PARTNJCRSHIP.  369 

Sec.    III. —  POWER  OF  EACH  PARTNER  TO  BIND  THE  FIRM. 

(^4)  By  bill  of  exchange.,  or  jjromissory  note. 

The  power  of  one  partner  to  bind  the  firm,  by  making  a  promis- 
sory note,  or  drawing,  or  accepting,  or  indorsing  a  bill  of  exchange, 
in  the  name  of  the  firm,  never  was  disputed,  and  seems  to  be  an  in- 
herent and  necessary  power  coming  within  the  scope  of  all  partner- 
ships.'(l)  In  all  contracts  concerning  negotiable  paper,  the  act  of 
one  partner  binds  all;  even  though  he  sign  his  individual  name  only, 
provided  it  appear  on  the  fice  of  the  paper  to  be  intended  to  have  a 
joint  operation  against  the  firm.''  But  if  a  bill  of  exchange,  order, 
or  note  be  drawn  by  one  partner,  in  his  own  name  only,  and  on  his 
own  credit,  and  without  appearing  to  be  on  partnership  account,  the 
partnei'ship  will  not  be  bound  by  the  signature,  even  though  it  were 
made  for  a  partnership  purpose. '^ 

When  a  person  holds  the  note,  indorsement,  acceptance, (2)  or  bill 
of  exchange  of  a  partnership,  made  by  one  of  the  partners  in  the 
name  of  the  firm,  and  such  instrument  was  in  fiict  intended  to  meet 
the  private  debt  of  the  maker,  and  made  without  the  authority  or 
consent  of  the  other  members  of  the  firm,  or  in  a  transaction  out 
of  the  partnership  business,  still  the  firm  is  liable,  unless  the  holder 
of  the  paper,  who  sues  on  it,  had  actual  or  constructive  notice. (3) 
at  or  before  the  time  he  received  it,  of  the  circumstances  under 
which  it  was  made.*^  Indeed,  it  may  be  laid  down  as  a  general  rule, 
that  whenever  a  partner,  as  in  the  instance  just  stated,  abuses  a 
power  with  which  he  is  vested  by  the  general  scope  of  the  business 
of  the  firm,  the  partners,  and  not  an  innocent  third  person,  who  has 
neither  express  nor  constructive  notice  of  the  abuse,  must  and  ought 
to  be  responsible.^  But  if  A  colludes  with  and  induces  a  partner 
to  execute  to  him  a  note,  acceptance,  indorsement,  order  or  draft, 
or  to  do  any  other  act  in  the  name  of  the  firm,  which  by  the  gene- 
ral business  of  the  firm  he  is  authorized  to  do,  still  if  A  at  the  time 

(a)  1  Wnnil.  Rep.  457.  (d)  4  Jolms.  Rep.  251;  13  East,  175;  19  Jolin». 

(b)  3  Kent's  Com.  41.  Rep.  15);  1  Wend.  Rep.  529. 

(c)  15  EaBt,  7;   12  Enj.  C.  L.  Rep.  149;  sea  1       (e)  7  East,  210;  2  Pet.  Rep.   186;  Be«  ante  p. 

Gall.  Rep.  630.  317,  n.  (1). 


(1)  It  mav,  however,  be  possible  to  form  a  temporary  partnership  for  a  sinple 
transaction,  that  would  require  neitlier  capital  nor  expense  to  carry  it  on.  In  the 
business  of  such  a  parlnersliip,  it  would  be  unnecessary  to  execute  promissory  notet 
or  bills  of  exchange,  and  neither  p;irtner  could,  by  doing-  so,  rendir  the  firm  liable, 
if  tlie  person  who  received  the  paper  knew,  or  with  common  caution  might  have 
known,  the  limittd  nature  of  the  partnership  business. 

(2)  As  to  what  is  an  acceptance  of  a  bill  of  exchange,  see  Title  31,  §7. 

(3)  CoNSTRi-CTivK  .NOTicK.  A  party  to  a  transaction  is  presumed  to  know,  and 
therefore  is  said  to  have  constructive  notice  of,  every  thing  which  a  person  of  com- 
mon prudence  and  cuution  would  have  inquired  into,  and  known,  had  he  been  sur- 
rounded by  the  same  suspicious  circumstance». 

47 


370  PAHTNERsuiP.  [Prt.  %  Title  29, 

the  paper  is  executed  or  act  done,  knows  that  tfic  consideration  for 
which  it  is  done  has  in  l\ict  no  connection  or  rehition  to  the  part- 
nership l)usiness,  A  cannot  make  the  partnership  Hablc,  as  he  and 
the  partner  are  both  guilty  of  a  fraud  upon  tiie  firm.*  If  A,  how- 
ever, procure  the  negotiable  paper  of  the  firm,  and  transfer  it  to  a 
bona  tide  holder,  who  has  neither  express  nor  constructive  noticeH) 
of  the  fraud,  such  honest  holder  can  recover  the  amount  fron-i  the 
firm;  as  it  then  becomes  a  question  whether  the  partners  or  an  in- 
nocent third  |)erson  shall  sutfer.'' 

If  a  negotiable  instrument  be  signed  by  a  partner  in  his  own 
name,  it  will  not  bind  tlie  firm,  even'though  the  proceeds  be  applied 
to  partnership  purposes,  unless  the  n;une  of  that  partner  be  also  the 
name  of  the  firm.  But  if  a  partnership  business  be  carried  on  in 
the  name  of  one  member  only,  a  bill  or  note  signed  by  him  will 
render  the  other  partners  liable,  if  such  instrument  was  given  upon 
a  partnership  transaction;  but  if  such  bill  be  issued,  and  the  pro- 
ceeds be  applied  to  the  separate  use  only  of  the  partner  so  signing 
it,  the  other  partners  will  not  be  liable  on  it,  because  no  partnci-ship 
firm  was  pledged.*^ 

If  a  bill  or  note  be  payable  to  several  persons  who  are  not  in 
partnership,  the  right  to  transfer  it  is  in  all  collectively,  and  not  in 
one  individually;  as  where  a  bill  was  drawn  on  a  father  and  son  not 
partners,  payable  to  their  order,  the  son  alone  indorsed  it;  in  an 
action  by  the  indorsee  against  the  acceptor,  held  that  the  f  ither  and 
son  ought  to  have  indorsed  it,  and  that  the  indorsement  by  the  son 
did  not  give  the  indorsee  a  right  to  sue.*^ 


{B)  Of  one  partner  binding  the  firm  by  salc^  contract^  dced^  Sfc. 

The  act  of  each  partner  in  transactions  relating  to  the  partner- 
ship, is  considered  the  act  of  all,  and  binds  all.  What  acts  do,  or 
do  not  relate  to  the  partnership  business,  often  becomes  a  difficult 
question,  as  it  depends,  in  a  great  measure,  upon  the  object  for 
which  the  partnership  was  formed.  If,  for  example,  it  be  for  making 
and  selling  brick,  ench  partner  may  bind  the  firm  by  the  purchase 
of  all  materials  and  implements  necessary  for  the  business,  by 
hiring  laborers  to  perform  the  work,  and  by  selling  and  pledging 
the  brick.  We  have  already  seen,  that  the  power  of  executing 
notes,  bills  of  exchange,  drafts  or  orders,  in  the  name  of  the  firm, 
is  a  power  growing  out  of  all  partnerships.(2)  These  and  many 
other  acts  would  come  within  the  range  of  such  a  partnership. 
On  the  other  hand,  the  purchase  of  materials  or  implements  for 

(a)  1  East,  48;  2  Johns.  Rep.  300;  3  Pick.  4.      (c)  l^;  Eng.  C.  L.  Rep.256:^Bay.  54;  15  East,?. 

(b)  4  Johns.  Rep.  251;  3  Kent's  Com.  43,  44.      (d)  Doug.  653,j(n). 

(1)  As  to  what  constructive  notice  is,  see  preceding  pag-e. 
(S)  See  page  369. 


§3,  (B).]  PARTNERSHIP.  371 

making  brick,  could  have  no  relation  to  a  partnership  entered  into 
by  two  physicians,  to  practice  their  profession.  The  nature  there- 
fore of  the  t]-ansactions  for  which  the  partnership  is  entered  into 
and  the  mode  in  which  the  business  is  usually  conducted,  will  deter- 
mine, generally,  the  question  whether  the  act  of  a  co-partner  may 
be  considered  as  coming  within  the  general  scope  of  the  business 
of  the  firm.  When  tlie  subject  matter  of  the  contract  does  not 
come  within  the  general  scope  of  the  business  of  the  firm,  (as 
where  one  of  two  physicians,  who  are  partners  in  their  profession- 
al business,  purchases,  in  the  name  of  the  firm,  sand  lor  makinof 
brick.)  the  firm  will  not  be  bound,  unless  they  consented  that  the 
contract  should  be  made  in  the  name  of  the  partnership.'"  But,  if 
the  subject  matter  of  the  contract,  or  the  act  done,  be  within  the 
general  scope  of  the  partnership  business,  the  firm  cannot  rid  them- 
selves of  their  liability  by  showing  that  it  had,  in  fact,  no  relation 
to  the  partnership  business,  unless  tl>ey  also  show  that  the  person 
witli  whom  the  single  partner  made  the  contract,  knew^  or  by  the 
exercise  of  common  prudence  might  have  known,  that  the  contract 
was  not  made  in  reference  to  partnership  transactions.*^  Thus, 
where  there  is  a  partnership  for  making  brick,  and  one  of  the  part- 
ners in  the  name  of  tlie  firm,  but  for  his  oven  private  use,  contracts 
for  sand  or  other  materials  for  making  brick,  and  uses  the  materi- 
als for  his  own  priv;ite  account;  the  subject  matter  of  the  contract 
being  within  the  scope  of  such  partnership,  the  firm  are  liable.  But 
if  the  person  who  supplied  the  materials  knew^  that  they  were  for 
the  private  use  of  the  partner,  the  firm  would  not  be  liable;  al- 
though tlie  partner  contracted,  and  agreed  to  pay  for  them,  in  the 
name  of  the  firm. 

Partners  cannot  limit  the  exercise  by  each  other,  of  incidental 
powers,  naturally  growing  out  of  the  general  scope  of  the  pai'tner- 
ship  business;  unless  the  person  with  whom  the  contract  is  made, 
knows  that  there  is  such  a  limitation.''  As  where  two  persons  in 
partnership  for  the  sale  of  horses,  the  property  of  the  firm,  agree  be- 
tween themselves  never  to  warrant  any  horse;  yet,  if  one  of  the 
partners  warrant  a  horse  to  a  purchaser  who  knows  nothing  of  the 
agreement  between  the  partners,  the  firm  are  liable  on  such  war- 
I'anty;  because  the  contract  of  warranty  is  consistent  with  the 
reguhir  course  of  such  a  business. 

When  one  partner  is  about  to  enter  into  a  contract  with  a  third 
person,  and  his  copartner,  with  the  knowledge  of  such  tliird  person, 
forbids  the  contract,  the  firm  will  not  be  bound,  unless  they  after- 
wards assent  to  the  contract,  or  the  property  contracted  for  come 
to  the  use  of  the  firm.*^ 

One  partner  is  not  authorized  to  make  the  partn&i'.ship  responsi- 
ble as  surety  for  the  debt  of  a  third  person,  without  nn  express  au- 
thority for  that  purpose,  or  an  authority  to  be  implied  from  the  pre- 
vious course  of  dealing  between  the  parties,  or  unless  tlie  guaranty 
be  afterwards  adopted,  and  acted  upon  by  the  firm.      If  the  guar- 

(f )  16  Johns.  Rep.  roi;  4  Johns.  Rep.  277,  278.     (h)  Gow  on  Part.  66. 

(a)  3  Kent'i  Com.  42;  12  Pick.  Rep.  -130.  (■•'    10  Fait  264;  3  Comi.  Kop.  121. 


372  PARTNERSHIP,  [Prt. '2,  Title  ^9, 

anty  have  roforcncc  to  the  rouular  course  of  business  transacted  by 
the  partnership,  it  will  bind  tlu>  (iiiu.'' 

The  same  !j;eneral  rule,  with  the  same  exceptions,  applies  where 
one  partner  gives  the  name  of  the  copartnership,  as  a  mere  and 
avowed  suiTty  for  another  person,  without  the  authority  or  consent 
of  the  lirm.  in"  a  matter  entiri'ly  unconnected  with  the  partnership 
business.*^ 

One  partner  cannot  charge  the  firm  with  a  debt,  by  his  scaled  in- 
strument, even  in  commercial  dealings.  To  seal  an  instrument  re- 
quires a  special  authority. ^  Yet  the  partnership  will  be  bound  by 
a  sealed  instrument  executed  by  one  partner  in  the  name  of  the 
firm,  if  there  be  a  previous  ve)-l)al  or  written  authority  from  the 
other  partners,  or  tiiey  afterwards,  either  verbally  or  otherwise, 
adopt  it  as  their  act.''  If  the  partnership  do  not  adopt  it  as  their 
act,  the  instrument  is  valid,  as  against  the  ])artner  who  signed  it. 
and  he  may  be  sued  ui)on  it  in  his  own  name,  thougli  lie  executed 
it  in  the  name  of  the  firm.'  As  one  partner  may  collect  and  dis- 
charge a  debt,  he  may  also  release  a  debt  by  an  ordinary  release 
under  seal.''  As  there  is  no  implied  authority  by  a  partner  to  act 
for  the  firm,  except  so  far  as  to  carry  on  the  business  of  the  com- 
pany, one  partner  cannot,  therefore,  bind  the  firm  by  submission  to 
arbitration,  even  of  matters  arising  out  of  the  business  of  the  firm;' 
unless  suit  be  actually  pending  for  or  against  them  at  the  time  of 
the  submission.""  A  partner  is  boinid  by  the  admissions  and  repre- 
sentations made  by  his  copartner  during  the  existence  of  the  part- 
nership." So,  a  notice  served  or  a  demand  made  on  one  partner  is 
binding  on  all." 


Sec,  IV. —  OF  the  dissolution  of  a  partnership,  and  the  powers 

OF  A  partner  after  THE  DISSOLUTION. 

If  a  partnership  is  formed  for  a  single  purpose  or  transaction,  it 
ceases  as  soon  as  the  business  is  completed.'' 

Each  partner  may,  by  giving  notice  to  his  copartners,  dissolve 
the  partnership  at  any  time,  as  to  all  future  capacity  of  the  firm  to 
bind  him  by  contract;  and  this  may  be  done,  even  though  the  par- 
ties had  covenanted  with  each  other,  that  the  partneiship  should 
continue  for  a  farther  and  definite  period  of  time.  The  partner 
who  thus  dissolves  his  connection  with  the  firm,  will  subject  him- 
self to  a  claim  of  damages  ibr  a  breach  of  the  covenant.*! 

A  partnership  is  dissolved  by  the  death  of  one  of  the  partners. 
In  such  case,  the  surviving  partners  must  sue,  and  be  sued,  for  all 

(d)  12  Sere,  and  Tlawlc,  13;  2  Barn,  and  Aid.  (I)  1  Pef.  Rep  222;  1 1  Eng.  0.  L.  Rep.  51;  1 
67.i;  3  Kent's  Com.  47.  Wen.l.  Rep.  326. 

(•)   19  Jolins.  Kep.  154.  (ni)   Wright's  Rep.  4^);  14  Mass.  Rep.  43. 

(f)  7  T.  R.  201.  (n)  Sann.   PI.  and  ^Ev.  70B,  and  casei  there 

(h)  3  Kent's  Com.  47,  48,  nnd  the  cases  there  cited, 

cited;  11  Pick.  Rep.  400.  (o)  Id.  Ih. 

(i)  Wrieht'g  Rep.  93.   118.  142;  »m  10  Pici^.  (p)  16  Johng.  Rep.  491. 

279l  1  Peteri'  V.  8.  Rep.  46.  (q)   17  Johns.   Rep.  525;  19   Johns.  Rep.  538. 

(k)  1  W»n*.  336.  Rnt  lee  Oow  on  Pnrt.  278. 


§4.]  PARTNERSHIP.  373 

debts  and  claims  growing  out  of  the  partnership  business;  and  nei- 
ther an  executor  nor  administrator  of  the  deceased  partner  can  sue, 
or  be  joined  in  such  suit.  All  the  legal  rights,  powers,  and  reme- 
dies appertaining  to  tlie  partnership,  vest  in  the  survivors.* 

The  acknowledgment  of  a  debt  or  fact  by  a  partner,  after  the 
partnership  is  dissolved,  will  not,  in  general,  bind  the  firm,  nor  re- 
vive a  debt  barred  by  the  statute  of  limitations.''  This  would  be 
permitting  the  partner  to  create  a  new  debt  against  the  firm,  after 
its  dissolution.  The  same  objection,  it  is  said,  does  not  apply  to 
declarations  of  a  partner  made  after  the  dissolution,  concerning 
facts  which  transpired  previous  to  that  event;  and  declarations  of 
that  character  are  admissible  to  charge  the  partnership. •= 

Although  the  power  of  a  partner  to  bind  the  firm  ceases  upon 
a  dissolution  of  the  partnership;  yet,  a  partner,  neglecting  to  give 
public  notice  of  such  dissolution,  will  be  liable  to  a  person  who 
contracts  with  his  copartner  upon  the  faith  of  the  firm,  and  who 
has  no  notice  of  the  dissolution.*^  The  insertion  of  a  notice  of  the 
dissolution  in  a  public  newspaper  of  the  county  or  town  where  the 
partnership  business  was  carried  on,  seems,  of  itself,  to  be  sufficient 
to  exempt  a  retiring  partner  from  responsibility  for  contracts  en- 
tered into  after  such  notice,  with  persons  who  had  not  previously 
dealt  with  the  firm.*^  But  as  to  such  persons  as  have  had  previ- 
ous dealings  with  a  copartnership,  the  publication  of  the  notice 
would  not  be  conclusive  evidence  of  knowledge  of  the  dissolution, 
unless  they  took  the  paper  in  which  the  notice  was  published ;S  and 
in  such  case  it  will  be  for  the  justice  to  ascertain,  whether  there 
were  any  circumstances  from  which  it  could  be  fairly  inferred 
that  the  dissolution  was  known  by  means  of  the  publication,  or 
otherwise,'' 

It  is  usual  for  a  firm,  upon  the  dissolution  of  a  partnership,  to 
authorize  one  of  the  partners  to  settle  their  joint  atlairs.  Where 
this  is  the  case,  and  notice  as  well  of  the  dissolution  as  of  this  ar- 
rangement between  the  partners  is  given,  a  debtor  to  the  firm  can- 
not, by  colluding  with  the  outgoing  partner,  obtain  from  him  a  valid 
discharge  of  the  debt:  a  receipt  given  under  such  circumstances 
will  be  fraudulent  and  void.'  But  if  no  such  arrangement  be 
made,  the  partnership  still  continues  for  the  purpose  of  collecting 
and  paying  debts,  and  otherwise  closing  the  concerns  of  the  part- 
nership.'' 

(a)  Oow  on  Part.  435.  (e)  6  Cowen,  701;  2  Johns.  Rep.  300:  Gow  on 

(b)  1  Marsli.  Ky.   Rop.    189;   1   Pet.  Rep.  351.  Pnrt.  .'WJ.    {Phil.  ed.  lS2o,)  iiott  (l). 

37.3;  3  Munif.    Rep.   191;    17   Ser;;.  and  («)  6  Cowen,  701. 

Rawie,  12«;  7  Cowen,  fj50;    13  Jolins.  (Ii)    15  Johns.  Rep.  57. 

Rep.  53(i;  9  Cow  Rep.  420.  (i)  2  ("amp.  617. 

(c)  3  Kent's  Com.  51.  (k)  6  Cow.  441. 
jjd)  5  East  225;  G  Johns.  Rep.  423. 


374  PARTNERSHIP,  ^Prt.  2,  Title  29, 


Sec.  V. — ACTIONS  by  and  against  partners. 

The  christian  and  surnnmcs  of  all  the  partners,  whether  plain- 
tills  or  tlet'endants,  should  be  entered  on  the  docket,  and  in  the  pro- 
cess.(l) 

It"  tlie  plaintills  sue,  or  it"  the  defendants  are  sued  as  partners,  the 
plaintiH's  must  prove  the  partnership,  or  be  nonsuited.  If  the  plain- 
tilfs  sue  as  partners,  and  it  appear  that  therje  are  other  partners  who 
are  not  made  plaintills,  or  if  it  appear  that  one  or  more  of  the  plain- 
tifls  were  not  in  tact  cop:u-tners,  though  described  as  such,  the  jus- 
tice must  nonsuit  the  plaintills.* 

If  the  plaintilf  sue  a  surviving  partner,  he  must  prove  the  part- 
nership as  in  other  cases;  but  it  d(jes  not  seem  necessary  to  prove 
the  death  of  the  deceased.''  Where  the  business  has  been  carried 
on  in  the  name  of  several,  one  of  them  may  still  support  an  action, 
if  he  prove  that  the  others  were  not,  in  fact,  partners;*^  and  one  in 
whose  name  business  has  been  carried  on,  is  a  proper  witness  for 
the  plaintiil",  to  j)rove  that  he  was  not  a  partner.''  But,  in  general, 
one  who  is  in  fact  a  partner,  though  not  sued,  is  incompetent  to  tes- 
tify for  the  partnersliip;  and  even  a  release  from  his  copartner  will 
not  render  him  competent,  if  he  may  afterwards  be  subjected  to  the 
payment  of  the  costs  or  debt.^  Where  there  is  a  secret  dormant 
partner  of  the  plaintiff,  it  is  not  necessary  that  he  should,  though  he 
may,  join  in  the  action.^ 

If  the  defendants  are  sued  as  partners,  and  it  appear  that  some 
rnembers  of  the  firm  are  omitted,  the  defendants  cannot  take  any 
advantage  of  the  omission,  after  the  cause  proceeds  to  a  hearintr. 
If  they  object  to  it  before  trial,  they  must  state  by  affidavit  who 
are  their  partners,  and  the  plaintiil'  may  ask  that  the  question  be 
decided  upon  testimony;  and  if  the  justice  find  from  testimony  that 
there  are  other  partners,  the  plaintiil"  may  have  a  summons  issued 
for  the  partners  omitted;''  and  their  names  may  be  inserted  with 
the  other  defendants  upon  the  docket,  and  the  cause  proceed  as  in 
other  cases.  If  the  justice  find  that  there  are  no  other  partners,  he 
may  render  judgment  for  tlie  costs  against  the  defendants  up  to  that 
time,  and  proceed  with  the  cause  as  in  other  cases. 

Where  the  defendants  are  all  sued  as  partners,  and  it  appears  on 

(a)  5  T.  R.  709;  2  Stra.  820;  1  Esp.  Rep.  182.  (e)  VVriglit's  Rnp.  143. 

(b)  Saun.  PI.  ami  Kv.  704.  (g)  2  Taun.  :524;  8  Scrg.  and  Ravvie  55. 

(c)  14  East  210;  2  Johns.  Ca.  874.  (lij   Practice  act,  $50. 

(d)  2  Eng.  C.  L.  Rep.  279. 

(1)   If  the  firm   consist  of  two  or  more  persons,  as  A 15 ,  .ind  C 

D ,  and  the  name  of  llie  firm  b(^  "A 15 &  (Jo."  enter  their  names  on 

the  (locket,   and   in   tlie  writs,    as  follows;    "A B ,    and  C D ," 

[rhrlKtian  and  surname]    "partners  iincUr  the   name  and  firm   of  .\ 15 & 

Co."      If  one  of  tiie  partners  be  dead,  the  entry  slionld  be  thus:  ".\ 15 ," 

[christian  and  surname  of  the  living  partner,]  "surviving-  partner  of  C D ," 

[christian  and  surname,]   "late  partners  under  the   name  and  firm  of  A 

B &  Co." 


§5,6.]  PAIITXKRSHIP.  375 

the  trial  that  some  of  them  are  not  partners,  the  plaintiff  must  be 
nonsuited.* 

The  partnership  may  be  proved  by  the  verbal  testimony  of  clerks 
or  other  persons,  who  know  that  the  partners  have  carried  on  busi- 
ness together.  It  is  unnecessary  to  produce  the  articles  of  copart- 
nership. 

It  is  a  well  settled  rule  that  partners  cannot  sue  each  other  at 
law,  for  any  cause  of  action  or  debt  growing  out  of  or  relating  to 
the  partnership.  But  where  there  has  been  a  settlement  of  the 
partnership  accounts,  and  a  balance  struck,  whereby  it  appears 
that  a  certain  sum  is  due  to  one  of  the  partners,  and  there  has  been 
an  express  and  direct  promise  to  pay  such  balance,  a  suit  may  be 
instituted,  and  a  recovery  had  upon  the  promise.^ 


Sec.    VI. EXECUTION  AGAINST  PARTNERS. 

Upon  an  execution  against  a  firm,  the  whole  effects  of  the  part- 
nership, or  a  sufficient  quantity  thereof  to  satisfy  the  sum  recov- 
ered, may  be  seized  upon  and  sold.  So,  the  separate  effects  of  any 
or  either  of  the  individual  partners,  may.  be  seized  upon  and  sold.'' 

If  there  be  a  judgment  against  a  separate  partner,  for  his  private 
debt,  the  undivided  interest  of  the  partner  in  the  copartnership,  may 
be  sold.  It  is  the  interest  of  the  partner  in  the  concein,  and  not 
the  effects  themselves,  which  the  officer,  in  such  case,  sells j**  and 
the  purchaser  only  purchases  the  undivided  interest  which  the  part- 
ner owns,  after  the  accounts  of  the  firm  are  settled;  or,  in  other 
words,  the  purchaser  takes,  subject  to  the  partnership  debts.*"  The 
officer,  therefore,  does  not  seize  the  partnership  property,  itself,  on 
an  execution  against  a  separate  partner,  (as  he  would  do  if  the  exe- 
cution were  against  the  firm,)  for  the  other  partner  has  a  right  to 
retain  the  property  for  the  payment  of  the  partnership  debts.^ 

(a)  1  Chitt.  PI.  34.  (e)  16  Johns.  Rep.  102,  and  106,  notes,  where 

(c)  1  Hns.  and  Pul.  547.  the  iiutliorities  are  rotlected.. 

(d)  2  Johns.  Chy.  Rep.  548,  per  Kent,  Chan.;     (k'  Id.  lb.;  2  Wend.  553. 

8  Pet.  U.  S.  Rep.  271.  (1.)  2  T.  R.  479.  483,  n.  (a). 


TITLE  XXX. 


PAYMENT.(l) 

SECTION   I.       THE    DIFFKRENCK    BETWEEN    A    PAYMENT    AND    A    SET    OFF. 
II,        API'LICATION    OF    PAYMENTS,     AND    TO    WHOM    TO    BE    MADE. 


Sec.  I.— 


THE  DIFFERENCE  BETWEEN   A   PAYMENT  AND  A   SET  OFF. 


If  A  owes  yon  a  debt,  and  yoii  receive  money  or  property  upon 
it,  in  discliarire  of  a  part,  or  the  whole  of  the  debt;  such  accept- 
ance of  money  or  property  is  called  a  payment.  But  if  A  owes 
you  a  debt,  and  you  contract  a  debt  with  him  for  money  or  prop- 
erty, there  are  then  mutual  debts  existing  between  you;  and  if  one 
party  sues  the  other,  the  defendant  may  set  off  the  debt  due  liiui, 
against  the  debt  sued  upon.  A  set  ofl',  then,  exists,  where  there  are 
cross  demands,  or  distinct  debts,  on  both  sides;  a  payment,  where 
money  or  property  is  delivered  for  the  purpose  of  being  directly  ap- 
plied to  the  liquidation  of  the  debt  or  claim  which  it  was  intended  to 
cancel,  in  whole  or  in  part. 

Where  the  nature  of  the  dealings  between  parties  necessarily 
constitutes  an  account,  consisting  of  charges  and  payments,  or  con- 
nected charges  and  credits,  the  balance^  only,  is  the  debt,*  and  the 
credits  are  deemed  payments. 


Sec.  II. APPLICATION  OF  PAYMENTS,   AND  TO  WHOM  TO  BE  MADE. 

Where  a  creditor  has  two  or  more  demands  against  his  debtor, 
the  debtor  may,  in  general,  at  the  time  he  makes  a  payment,  direct 

(a)  4  Burr.  2221. 

(1)  .\s  to  when  payment  of  prti-t  of  a  debt,  in  discharge  of  the  whole,  will  dis- 
charge the   wliole,  st  e  p^iges  185,  186. 

As  to  wliut  circvinistances  will  raise  the  presumption  of  payment,  see  p.  68. 

As  to  when  tlie  transfer  of  a  claim  in  payment  of  a  debt,  will  operate  as  a  pay- 
ment and  discharge  the  assignoi-,  see  p.  213. 

As  to  the  effect  of  payment  in  forged  notes,  seep.  214. 

As  to  the  effect  of  payment  in  forged  bank  bills,  or  the  bills  of  broken  banks. 
Bee  p.  378,  note  (1). 


[Prt.  2,  Title  30,  §1, 2.]  payment.  277 

the  application  of  the  money  to  the  discharge  of  whichsoever  debt 
he  pleases,  and  the  money  must  be  appropriated  accordingly. 

But  where  money  is  paid  to  a  creditor,  generally,  without  any 
specific  appropriation  by  the  party  paying,  and  the  creditor  has  sev- 
eral demands  against  the  party  paying,  he  may  apply  the  money 
paid  to  which  of  these  demands  he  pleases.*  And  in  such  case,  the 
creditor  need  not  apply  it  to  any  particular  demand  at  the  moment 
of  payment,  but  has  a  right  to  make  the  application  at  a  subsequent 
period;  nor  will  an  entry  in  his  books,  applying  it  to  a  particular 
demand,  but  not  communicated  to  the  party  pnying,  preclude  him 
from  applying  it,  afterwards,  to  another  demand.''  And,  it  seems, 
the  creditor  may  apply  the  payment  to  the  discharge  of  a  purely 
equitable  demand,  and  sue  his  debtor  for  the  prior  legal  debt,*^ 

Where  A  and  B  entered  into  a  bond  to  guaranty  any  sums  not 
exceeding  £.3000,  which  the  plaintiff  might  subsequently  advance 
to  A;  held,  that  payments  made  generally  to  the  plaintiff' on  account 
of  A,  might  be  applied  by  them  in  liquidation  of  a  balance  existing 
against  A,  before  the  execution  of  the  bond,  and  that  B  could  not 
insist  on  such  payments  being  applied  in  exoneration  of  his  liability 
on  the  bond,  although  at  the  time  of  his  entering  into  it  the  plain- 
tiff did  not  give  him  notice  that  any  balance  was  then  existing 
against  A:  the  court  said,  that  B  should  have  inquired  at  the  time 
when  he  executed  the  bond,  whether  the  account  stood  clear.** 

But  where  security  had  been  given  by  a  surety  for  goods  to  be 
supplied  to  his  principal,  and  not  in  respect  of  a  previously  existing 
debt,  and  goods  were  subsequently  supplied,  and  payments  were 
from  time  to  time  made  by  the  principal,  in  respect  of  some  of 
which  discount  was  allowed  for  prompt  payment,  it  was  inferred  in 
favor  of  the  surety,  that  all  these  payments  were  intended  to  be  in 
liquidation  of  the  latter  account.* 

But,  where  a  creditor  has  two  demands  against  his  debtor,  and 
the  debtor  pays  a  sum  of  money  without  directing  to  which  it  shall 
be  applied,  if  the  amount  paid  exceeds  one  of  the  demands,  and  is 
exactly  equal  to  what  remains  due  on  the  other,  it  will  be  consider- 
ed as  having  been  paid  in  discharge  of  that  other.^  So,  a  positive 
refusal  to  pay  one  debt,  and  an  acknowledgment  of  another,  with 
the  delivery  of  the  sum  due  upon  it,  must  be  considered  as  payment 
of  the  last  mentioned  debt.*" 

But  in  some  cases,  the  law  will  direct  the  application  of  the  pay- 
ment of  money,  even  where  the  debtor  has  not  directed  its  specific 
application.  Thus,  payments  by  a  debtor  to  surviving  partners, 
from  time  to  time,  upon  one  general  account,  including  the  old 
debt,  are  to  be  applied,  in  the  first  place,  to  such  old  debt;'  but 

(a)  4  rranc1i,317;  14  Eai-t,243,  (n);  1  Mcrv.  (d)  2  M.  and  S.  118. 

572;  2  Johns.  Cliy.  Kep.  99;  9  H'liea.  7i'0;  (e)  3  Enp.  C.  L.  Itep.  265;  see  1 1  Id.  .34. 

9  <'ow.  420.  41.9;  10  Pick.  129.  (g)  3  (nine's  Itep.  14. 

(b)  9  Eng.  U.  L.  Rep.  25.  (h)  7  Wliea.  13. 

(c)  1  Eng.  C.  I>.  Rep.  495;  but  lee  ^  Id.  252.  («)  2  Barn,  and  Aid.  39. 

48 


378  PAYMENT.  [Prt.2^  Tide  30^ 

where  such  old  debt  is  not  brought  into  the  new  account,  general 
payments  on  the  new  account  are  not  to  be  considered  as  made  in 
discharge  of  the  old  debt/(l) 

Where  payments  are  made  upon  one  entire  account,  they  are  to 
be  considered  as  payments  in  discharge  of  the  earlier  items.^ 

Where  there  are  two  demands,  one  legal  and  the  other  illegal, 
the  law  will  apply  a  payment  to  the  discharge  of  the  legal  demand." 

In  no  case  can  a  creditor,  who  receives  payment  generally,  re- 
tain and  appropriate  it,  without  the  consent  of  the  debtor,  to  the 
extinguishuient  of  a  demand  created  after  the  payment,  leaving  a 
prior  demand  unpaid.^ 

Payment  to  an  authorized  agent,  in  the  ordinary  course  of  busi- 
ness, is  binding  on  the  principal,  and  his  authority  may  be  inferred 
from  his  relative  situation  in  respect  of  the  principal,  and  from  other 
circumstances.  Thus,  in  an  action  for  goods  sold,  where  the  defence 
was  pavment,  and  it  appeared  that  the  defendant  had  pnid  the  debt 
at  the  plaintilf's  counting-house,  to  a  person  sitting  there  in  a  part 
railed  otf,  with  account  books  near  him,  and  appnrently  entrusted 
with  the  conduct  of  the  business,  TENTEiiniiN.  C.  J.,  held,  that  this 
was  good  payment  to  the  plaintiff,  although  the  person  to  whom  the 
money  was  paid  had  not,  in  fact,  any  authority  to  receive  it.''  Pay- 
ment'to  an  agent  employed  by  the  plaintiff  to  obtain  the  debt,  is  as 
effectual  as  payment  to  the  plaintiff  himself,  or  to  the  attorney  on 
the  record.  But  payment  to  the  attorney's  clerk,  or  to  the  attor- 
ney's agent,  is  not  binding  on  the  principal.' 

Payment  by  a  debtor  to  a  third  person,  in  pursuance  of  an  order 
given  by  the  creditor,  is  equivalent  to  pnyment  to  the  creditor  him- 
self Payment  to  an  executor  who  has  obtained  a  pi'obate  of  a 
forged  will,  is  nn  answer  to  an  action  brought  against  the  debtor  by 
the  rightful  administrator,  on  revocation  of  the  probate.'' 

An  authority  given  to  an  agent  to  receive  money,  does  not  allow 
the  debtor  to  set  ofi'  a  debt  which  the  agent  owes  him:  for  if  that 
were  permitted,  it  would  enable  the  agent  to  collude  with  the  debtor 

(t)  9  Ens.  C.  L.  Rep.  25.  (e'  9  Cowen,  420. 

(d)  2  nam.  and  Aid.  46;  II  Eng.  C.  L.  Rep.         (h     22  En-r.C.  I..  Hep.  291. 

36.  (i)   1  f^^P    115;   noil!   62.1, 

(e)  10  Eng.  C.  L.  Rep.  44.  (k)  7  Eng.  C.  L.  Rep.  249;  10  Id.  247. 


(1)  If  a  party  receive  in  payment  counterfeit  bank  bills,  it  is  not  a  payment,  and 
he  may  resort  to  his  oriifinal  contract,  in  like  manner  as  if  no  pavment  bad  been 
made.  2  Johns.  Rip  455.  It  is  necessary,  in  siicli  case,  for  tlie  plaint  ff  to  satisfy 
the  justice  that  tlie  identical  bill  was  received  from  the  di  fendant,  and  that  it  is 
counterrfit.  And,  it  seems,  where  bank  bills  are  receivt-d  in  pa}  men',  and  at  the 
time  of  such  pa\  ment  tlie  bank  wiiich  issued  the  bills  has  in  fact  stopped  pnyment, 
allbonsfh  tlie  failure  is  not  known  at  the  lime  and  place  of  payment  by  either  [)ar'y, 
the  loss  falls  upcm  the  party  paying,  and  not  upon  the  party  receivinij  the  bills. 
The  person  \rho  is  pi*id  bills  of  a  broken  bank,  has,  it  is  said,  received  for  his  debt 
that  which  has  no  value.     11   Wtnd.  Rep.  1;  Nile^  Register,  vol,  47,  p.  365. 


§2.]  PAYMENT.  379 

to  defraud  the  principal.  An  authority  given  to  a  commercial  tra- 
veler, to  receive  pnyment  in  inoneij  for  goods  sold  in  the  country  for 
his  employers,  does  not  empower  him  to  receive  payment  in  other 
goods.* 

If  money  be  sent  in  a  letter  by  post,  and  be  lost,  the  debtor  is 
discharged,  if  the  creditor  directed  it  to  be  so  transmitted,  or  if  it 
was  the  usual  course  of  business  between  the  parties.'' 

(a)  21  Eng.  C.  L.  Rep.  163;  19  Id.  499.  (b;  21  Id.  402. 


TITLE  XXXI. 


PROMISSORY  NOTES,  NEGOTIABLE  BONDS,  AND  BILLS  OF 

EXCHANGE. 


SECTION  I.         FORM  OF  A  BILL  OF  EXCHANGE,  PROMISSORY  NOTE,  AND  NF.GO- 
TL\BLE  BONO,  AND  THE  PARTIES   THERETO  DESCRIBED. 

II.  OF  THE  GENERAL  REQUISITES    OF    THESE    INSTRUMENTS;  AND 

HEREIN, 

(A)  Of  the  date. 

(B)  To  whom  payable. 

(C)  The  words  '•'•order,''^  ^'■bearer.,''^  or  '■'•assigns.''^ 

(D)  Where  payable. 
(jG)  In  ivhat  payable. 

(F)  When  payable. 

(G)  The  words  '•'•value  received.'''' 

\H)   What  ivords  are  sufficient  to  constitute  a  pro- 

7nise.i  4'C. 
(/)  Blank  signatures  delivered  to  be  Jilled  up. 

III.  HOW  THESE  INSTRUMENTS  ARE  TRANSFERRED. 

IV.  WHO  MAY  TRANSFER  THESE  INSTRUMENTS. 
y.       OF  THE  INDORSEMENT;  AND  HEREIN, 

(^1)  Its  form. 

(B)  Blank  indorsement.,  and  its  legal  effect. 

(C)  Indorsement  in  full.,  and  its  legal  effect. 

(D)  Restrictive  indorsement.,  and  its  legal  effect. 

(E)  Indorsement  waving  demand.,  and  notice  of  non- 

payment. 

(F)  Indorsement  without  recourse  on  the  indorser. 

Vr.  OF  THE  RIGHTS  AND  OBLIGATIONS  OF  THE  DRAWER  OF  A  BILL 
OF  EXCHANGE, BEFORE  ACCEPTANCE. 

VII.  OF  THE  PRESENTMENT  OF  A  BILL  FOR  ACCEPTANCE. 

VIII.  OF    THE    RIGHTS    AND    OBLIGATIONS    OF    THE    ACCEPTOR   OF    A 

BILL,  AND  THE  MAKER  OF  A  NOTE  OR  BOND. 

JX.  OF  THE  RIGHTS  AND  OBLIGATIONS  OF  THE  INDORSER  OF  A  BILL, 
NOTE,  OR  BOND,  AND  OF  THE  DRAWER  OF  A  BILL,  AFTER  AC- 
CEPTANCE. 

I.  AT  WHAT  TIME  DEMAND  OF  PAYMENT  MUST  BE  MADE  FROM 
THE  DRAWEE  OR  ACCEPTOR  OF  A  BILL,  OR  THE  MAKER  OF  A 
NOTE,  OR  BOND,  SO  AS  TO  MAKE  THE  INDORSERS  &C.,  LIABLE. 


[P/.  2,    T«7.  31.]       PROMISSORY  NOTES BILLS BONDS.  381 


SFXTION  XI.       OF  THE  MOPE  IN  WHICH  DEMAND  MUST  BE  MADE. 

XII.  OF  THE  NOTICE  OF  DEMAND  AND  NON-PAYMENT,  TO  BE  GIVEN 

TO  THE  DRAWER  OF  A   BILL,    AND    TO    THE    INDORSER    OF  A 
NOTE,  BOND,  OR  BILL,  SO  AS  TO  MAKE  THE   INDORSERS    &C. 

liable;  and  herein, 

(A)  How  the  notice  should  he  given. 

(B)  What  the  notice  should  contain.,  and  the  form 

thereof. 

(C)  When  the  notice  must  be  given. 

(D)  To  whom.,  and  by  whom.,  notice  should  be  given. 

XIII.  IN    WHAT  CASES  DEMAND,  AND  WHEN  BOTH  DEMAND  AND    NO- 

TICE OF  NON-PAYMENT,  WILL  BE  EXCUSED,  AND  WHEN   NOT. 

XIV.  IN   WHAT  CASES  THE  WANT    OR    FAILURE    OF   CONSIDERATION, 

&C.,   MAY   BE   SET   UP   AS  A  DEFENCE. 

XV.  HOW  THE  INDORSERS  &C,     MAY  BE  DISCHARGED,   BY  ONE  PAR- 

TY GIVING  TIME,  &C.,  TO  ANOTHER. 

XVI.  OF    THE    RIGHTS    AND    OBLIGATIONS    OF    PARTIES    TO    A    LOST, 

STOLEN,  OR  FORGED  NOTE,  BOND,  OR  BILL, 

XVII.  OF    THE    RIGHTS    AND    OBLIGATIONS    OF    PARTIES    TO    A  BANK 

CHECK, 


Sec  I. FORM   OF  a  bill  of  EXCHANGE,  PROMISSORY  NOTE,  AND  NEGOTI- 
ABLE BOND,  AND  THE  PARTIES  THERETO  DESCRIBED. 


A  bill  of  exchange  is  a  written  order,  from  one  person  to  anoth- 
er, to  pay  a  certain  sum  of  money  to  a  third;  and  is  what  is  gene- 
rally called  a  draft  or  order.,  for  the  payment  of  money.  Its  form 
is  generally  as  follows: 

Columbus,  January  1,  1846. 
Two  MONTHS  AFTER  DATE,  [or  "At  sight,"  or.,  '"'On  demand,"  or., 
'^Ten  days  after  sight,"]  pay  Abel  Payee  or  order,  [or  "-bearer," 
or  '•'•assigns,"  or  '•'•pay  Abel  Payee"  simply.,  omitting  order.,  bearer., 
and  as.'iig7is,  if  you  do  not  wish  to  make  the  bill  negotiable^^  sixty  dol- 
lars, FOR  VALUE  RECEIVED. 

Charles  Drawer. 
To  Edward  Drawee. 


The  person  who  draws  the  bill,  {Charles  Drawer^)  is  called  the 
drawer;  the  one  upon  whom  the  bill  is  drawn,  {Edward  Drawee^) 
is  called  the  drawee;  and  the  person  to  whom  the  money  is  direct- 
ed to  be  paid,  {Abel  Payee.)  is  called  the  payee. 


382  PROMISSORY  NOTES  —  BILLS BONDS.       [Pr/.  2,  TzV.  3  I, 

When  EthranI  Drawee  accepts  the  bill,  he  is  then  called  the  ac- 
ceptor; nnd  if  .1/^(7  Payee,  (tlie  bill  being  negotiable.)  should  in- 
dorse it,  and  deliver  it  to  another,  lor  instance,  to  your  friend  Smil/i^ 
Abel  Payee  would  then  sustain  two  characters,  being  called  indors- 
ER,  as  well  iispaijee;  and  Smilh  becomes  another  party  to  the  bill, 
called  an  indoksf.e;  and  should  Smith  indorse  it  to  another,  then 
Smith  acquires  two  characters,  that  of  first  indorsee,  and  skcond 
indorser;  and  the  one  to  whom  he  thus  transfers  the  bill,  is  called 
a  sEcoNr)  indorsee;  and  so  on,  through  any  jiuujber  of  indorsements, 
without  limitation.  The  person  who  is  entitled  to  the  bill,  and  the 
money  due  on  it,  for  the  time  being,  is  sometimes  called  the  holder 
of  the  bill,  whether  he  be  the  payee,  indorsee,  or  indorser. 

The  reader  must  become  familiar  with  the  appellation  drau-er^ 
drawee^  acceptor^  holder^  and  payee,  so  that  he  will  readily  under- 
stand what  parties  are  meant  by  these  names,  or  he  will  know  lit- 
tle or  nothing  about  the  application  of  the  principles  hereafter  stat- 
ed, in  relation  to  bills  of  exchange.(l) 


(1)  Before  proceeding-  further,  it  will  be  proper  to  illustrate  the  general  nature 
of  a  bill.  Suppose,  tlierefore,  tliat  Charles  Drawer  owes  Abel  Payee  sixty  dollars; 
and  to  pay  tliis  debt,  Charles  Drawer  draws  a  bill,  or  order,  on  Edward  Drawee, 
in  favor  of  Abel  Fai/ee,  thus: 

CoLUMnus,  January  1,  1847. 
Ten  days  after  date,  pay  Abel  Payee,  or  order,  sixty  dollars. 

Cha»l£s  Dkaweh. 
To  Edwabd  Drawee. 

Now,  Abel  Payee  may  take  this  hill,  before  the  ten  days  expire,  to  Edward 
Drawee,  and  ask  him  if  he  will  pay  it  at  the  time  when  it  will  become  due.  Tliis 
is  called  a.  present  men  i  of  a  bill  for  acceptance.  If  Drawee  says  lie  will  not  pay  it 
when  due,  then  he  will  not  be  liable  to  any  one  on  the  bill.  But  Abel  Payee,  in 
such  case,  must  give  Charles  Drawer  notice,  that  Edward  Drawee  refuses  to  accept 
the  bill,  and  then  Abel  Payee  may  sue  Cliarles  Drawer  on  the  bill  if  he  does  not 
immediately  pay  it.  But  if  Edward  Drawee  says  he  will  pay  the  bill,  he  then  ac- 
cepts it  by  writing  his  name  on  the  back  or  face  of  it,  thus: 

Accepted,  January  1,   1847. 

Edward  Drawee. 

This  acceptance  is  a  promise  to  pay  the  bill  when  it  becomes  due,  and  Edward 
Drawee  is  then  called  the  "acceptor." 

Suppose  that  after  the  bill  is  accepted  and  before  it  becomes  due,  Abel  Payee 
meets  your  neighbor  Smilh,  and  Payee  buys  a  horse  of  him,  and  proposes  to  give 
him  the  bill  for  the  horse.  The  bargain  being  made,  Abel  Payee  writes  his  name 
on  the  back  of  the  bill,  and  delivers  it  to  Smith. 

Smith  thus  becomes  the  indorsee  and  holder  fif  the  bill. 

Sufjpose,  then,  that  Smith  owes  your  acquaintance,  Johnson,  sixty  dollars,  and 
Johnson  agrees  to  receive  the  bill  in  payment;  Smith  then  indorses  his  name  on 
the  back  of  the  bill,  and  delivers  it  to  Johnson. 

Now  when  the  bill  becomes  due,  Jnhnson,  the  holder,  takes  it  to  Edward  Drawee, 
who  has  accepted  it,  and  demands  paymennt.  If  Drawee  refuses  to  pay  it,  John- 
son may  immediately  sue  Drawee  on  his  acceptance;  and  \(  Johnson  wishes  to  make 
Smith,  Drawer,  and  Payee  all  liable  to  him,  he  gives  them  notice  immediately, 
that  Drawee  refuses  to  pay.      Johnson  may  then  sue  either  Edward  Drawee,  or 


§1.]  PROMISSORY  NOTES BILLS BONDS,  383 

As  a  bill  of  exchange,  especially  after  acceptance,  is  very  nearly 
allied  to  a  promissory  note  and  negotiable  bond,  after  such  note  or 
bond  is  indorsed,  they  will  all,  therei'ore,  be  considered  under  one 
head,  pointing  out  the  ditierence  as  we  proceed. 

The  foUow^ing  is  the  usual  form  of  a  promissory  note: 

Columbus,  January  1,  1847. 
For  value  received,  I  promise  to  pay  Abel  Payee,  or  or  er,  [or 
'■■bearer,"  or  ''assigns,"  omitting  the  icurds  order,  bearer,  and  assigns^ 
when  you  icish   to  prevent  its  being  7iegotiubIe.'\  sixty  dollars,  two 
months  after  date. 

Charles  Dame. 

The  one  to  whom  the  money  is  payable,  still  continues  to  be 
called  the  payee;  but  the  one  who  is  bound  to  make  puyment,  is 
neither  a  drawer,  drawee,  nor  acceptor;  but  the  signer  of  the  note 
is  called  the  maker;  though  his  liability  to  the  payee  is  precisely  the 
same  as  if  he  had  accepted  an  order,  or  bill  of  exchange,  in  favor 
of  the  payee. 

If  the  note  is  negotiable,  and  Abel  Payee  indorses  it  to  your  ac- 
quaintance Smithy  Abe!  Payee  is  again  both  payee  and  indorser^  (the 
same  as  on  the  bill.)  and  Smith  an  indorsee;  and  the  same  charac- 
ters of  first,  second,  third,  fcc,  indorsers  and  indorsees,  may  be  thus 
created. 


Charles  Uravotr^  or  Aljel  Payee,  or  Smith.,  or  commence  separate  suits  against  alJ» 
or  as  many  of  them  as  he  pleases,  and  proceed  to  get  judgment  and  issue  execu- 
tion until  he  is  paid.  Johnson  need  not  give  notice  of  the  demand  and  non  pay- 
ment, except  to  those  whom  he  wishes  to  make  liable  to  him.  Druivee,  by  his 
acceptance  promises  to  pay  the  bill  when  due,  and  is  liable  on  his  acceptance, 
whether  siicli  (lem;ind  and  notice  be  given  or  not.  11"  Johnson  choosis,  he  may 
only  give  Smith  notice,  and  then  Smith  and  Drawee  alone,  will  be  liable  to  JohH- 
son. 

W  Smith,  on  receiving  notice  from  Johnson,  wishes  to  make  Payee  and  Drawer 
liable  to  liim,  in  case  he  has  to  pay  Johnson  the  amount  ol'  the  bill,  he  must  give 
th<-m  notice  of  the  demand  and  non-pay  mt-nt;  unless,  indeed,  Johnson  has  done  it. 
If  Sniilh  pays  the  amount  of  the  bill  to  Johnson,  the  bill  is  delivered  to  Smith,  and 
he  may  sue  not  onlj'  Drawe,  on  his  acceptance,  but  I'ayec  and  Drawer  also,  if 
Payee -AW^X  Drawer  have  received  notice  from  Johnson  ov  \\\n\ii^^\^\  oftht- deni  nd 
and  non-payment.  So,  ]f  Johnson  is  puid  by  Payee,  the  bill  is  dehv^  red  io  him, 
and  he  {/■'ayee)  may  not  only  sue  Dnnvcc  on  his  acceptMiuc,  luit  ma\  al>o  sue 
Drawer,  if  he  lias  received  notice  of  the  demand  and  non  payment.  If  Drawer 
pays  the  b  11,  he  may  sue  Drawee  on  his  acceptance. 

Thus  tlie  drawee/afier  accejitancr,  and  ihe  drawer  and  p.'iyee,  and  each  succes- 
sive indorser,  are  all  liable  to  each  succeeding  indor-ie;  and  when  any  one  in  this 
chain  of  succ.ssive  parlies  pays  the  bill,  he  may  look  to,  and  sue  for  payment, 
those  who  became  partii-s  to  the  bill,  before  he  did. 

It  must  not  be  understood  by  what  is  here  .stated,  that  it  was  necessary  for  the 
payee  to  present  the  bill  to  the  drawee  f <  r  arciptanre,  before  it  was  due.  He 
might  have  ncgotiati  d  it  bi  ffrc  it  was  du-',  without  callitig  on  the  drawie  at  all; 
and  if  the  drawee,  when  called  upon  by  the  holder,  on  the  day  it  became  <ine,  i  e- 
fused  to  accept  and  pay  it,  he  cannot  he  made  liable  on  it;  but  the  drawer  and 
Other  parties  will  be  liable,  in  the  manner  above  mentioned. 


S84  PROMISSORY  NOTES BILLS BONDS.    [Pr/.  2,  7'it7Ze  31 , 

If  a  pvomissory  note  has  a  seal  attached  to  the  name  of  the  maker, 
it  is  generally  called  a  single  hill  (1) 

The  form  of  a  negotiahle  bond  may  he  the  same  as  a  note,  except 
that  a  seal  is  attached  to  the  signer's  name;  or  it  may  he  in  the  form 
following: 

Know  all  men  hy  these  presents,  that  I,  Charles  Dame,  am  held 
and  hound  unto  Abel  Bite,  or  order,  [or  hearer,  or  assigns,  omiUivg 
the.  iconl.s  order,  bearer^  and  assiirns,  if  yuujxnsh  in  prevent  its  being 
negolidbh:']  in  the  sum  of  one  liundred  and  twenty  dollars ;(2)  for 
the  payment  of  which,  I  do  hereby  hind  niyself(3)  Sealed  and 
dated  this day  of ,  A.  D. . 

The  condition  of  the  above  obligation  is  such,  that  if  the  said 
Charles  Dame  shall  pay  the  said  Abel  JJite,  or  order,  [or  bearer,  or 
assigns.]  two  months  from  the  date  hereof,  the  sum  of  fifty  dollars, 
then  the  above  obligation  to  be  void;  othe^'vvise  to  remain  in  full 

force  in  law.  r.^,.--  ii-  '   / 

CiiARLKs  IXamk.  [sealS\ 

We  shall  call  the  person  who  signs  and  seals  the  bond,  {Oiarles 
Ddine,)  the  makkr;  and  the  obligee  to  whom  it  is  payable,  the 
PAYEE.  Tills  will  sim|)lify  the  subject;  as  the  signers  of  bonds  and 
notes,  and  those  to  whom  they  are  given,  will  be  designated  by  the 
same  names.  If  the  bond  is  negotiable,  the  payee  may  indorse  it, 
and  the  payee  and  indorse rs  are  named  in  the  same  manner  as  the 
indorsers  and  indorsees  of  notes  and  bills.  The  relative  rights  and 
obligations  of  the  indorsers  and  indorsees  of  bills,  bonds,  and  notes, 
are  similar. 


(1)  The  seal  to  a  deed,  bond,  or  otlief  contract,  may  be  of  wax  or  wafer,  or  an 
ink  scrawl.      See  Slat.     Skals. 

(2)  Tliis  sum,  which  tlie  maker  or  obli.q:or  of  a  bond  binds  himself  to  pay,  im- 
less  he  complies  witl\  the  condition  of  the  bond,  is  called  a  pknaltt.  Some  per- 
sons, wlio  are  unacquainted  with  tiie  nature  of  a  bond  to  which  is  annexed  a  con- 
dition, suppose,  that  if  the  condition  of  the  bond  is  not  complied  witi),  tiie  whole 
amount  of  the  penalty  must  be  paid.  This,  however,  is  a  mistake;  the  penalty  is 
only  intendi-d  to  cover  the  amount  of  damag-es  which  the  jiayee  may  sustain  in  con- 
sequence of  the  maker  of  the  bond  not  performing'  the  condition.  It  is,  therefore, 
of  liUle  consequence,  how  larg'e  the  amount  of  the  penalty  of  the  bond  ma)'  be; 
fur,  in  no  event,  can  the  payee  recover  moi-e  than  is  justly  due  to  him.  But  care 
shoulil  al«a>s  be  takeii,  to  insert  in  a  bond  such  an  amount  as  a  penalty,  tliat  the 
real  debt,  or  damages,  will  not  exceed  the  penalt}';  for  the  weig'lit  of  aulliorities 
seem  to  be,  that  in  u  suit  on  a  bond,  nothing  morQ  tlian  the  penalty  can  be  recov- 
ered; at  any  rate,  noihinu"  bej'ond  that  and  interest,  after  the  condition  is  broken, 
even  though  the  debt  or  damag-es  exceed  tlie  penally.  See  3  Cowen's  licp.  155, 
where  the  authorities  upon  tiiis  subject  are  collected. 

It  has  already  been  stated  that  the  surety  in  a  bond  cannot  in  any  event  be  made 
liable  bryond  the  peiiahy  of  the   bond.      See  pag-e  328. 

Although  tlie  ])eiialty  of  a  bond  be  more  ticm  one  liundred  dollars,  yet,  if  the 
amotmt  due,  or  damages  sustained,  be  less  tlian  one  hundred  dollars,  suit  upon  it 
may  be  brouglit  before  a  justice.      See  pag'e  6. 

(3)  Bonds  are  genery.lly  drawn,  binding  the  heirs,  executors  and  administrators. 
This  is  proper  in  Kng-land;  but  the  words  are  as  unnecessary  and  useless  here  as 
if  placed  in  a  bill  of  exchange,  or  promissory  note. 


§2,  (A),(B).]  PROMISSORY  NOTKS BILLS BONDS.  385 

Before  the  statute*  v  as  enacted  in  relation  to  bonds,  notes,  and 
bills  of  exchange,  bonds  were  not  negotiable. 


Sec.  II. OF   THE    GENERAL   REQ.U[SITES   OF    NEGOTIABLE    BONDS,  BILLS 

OF  EXCHANGE,  AND  PROMISSORY  NOTES. 


These  instruments,  in  order  to  be  negotiable,  must  be  for  a  cer- 
tain and  specific  sum  of  money,  payable  at  all  events,  and  to  some 
person  or  order,  or  bearer,  or  assigns.  If  they  do  not  possess  all 
these  qualities,  they  are  still  good  as  contracts,  and  may  be  assign- 
ed,(1)  but  the  assignee  cannot  sue  on  them  in  his  own  name. 


(A)  Of  the  date  of  these  instruments. 

It  is  always  safe  to  date  these  instruments.  But  if  they  have  no 
date,  or  an  impossible  date,  upon  proof  of  the  time  they  issued,  or 
Avere  made,  they  will  be  construed  the  same  as  if  they  were  dated 
at  that  time.  If  a  bill  or  note  be  payable  two  months  after  date, 
and  no  date  be  expressed,  it  is  payable  two  months  after  the  day  on 
which  it  was  made.** 

A  bill,  note,  bond,  or  other  contract,  is  good  and  valid,  though 
made  and  dated  on  Sunday.*^ 


{B)   To  whom  payable. 

They  should  specify  clearly,  to  whom  they  are  payable.  Where 
there  is  Abel  Bite,  the  father,  and  Abel  Bite.,  the  son,  a  bill  or  note 
payable  to  Abel  Bite.,  generally,  will  be  presumed,  (if  there  be  no 
proof  either  way,)  that  it  was  payable  to  the  father,  and  not  to  the 
son;  but  if  the  son  have  possession  of  the  instrument,  iie  may  re- 
cover in  his  own  name.** 

They  may  be  drawn  payable  to  bearer,  without  any  n'me,  and 
may  be  negotiated  as  if  they  were  payable  to  a  person  named,  or 
bearer,  and  if  payable  to  a  fictitious  person  or  order,  they  are  in 
efiect  payable  to  bearer  generally,  and  the  holder  may  sue,  in  his 
own  name,  the  drawer  or  maker;  and  he  may  also  sue  the  acceptor, 
if  the  fact  of  the  payee  b'iiig  a  fictitious  person  were  known  to  the 
acceptor.^ 

If  the  name  of  the  payee  or  indorsee  is  left  blank,  any  bona  file 
holder  may  insert  his  own  name  as  payee  or  indorsee. ^ 

(a)  Stat.  587.  (d)  2  Eng.  C.  L.  Rpp.  316. 

(b)  2  Hos.  and  Piil.  173.  (e)  3  Koril's  Com.  78. 

(r)  Wriglifs  Rep.  1^\.  (g)  2  M.  and  S.  90;  7  Cow.  Rep.  336. 


(1)  As  to  the  assignment  of  contracts  not  negotiable,  see  page  210. 
49 


386  PROMISSORY   KOTKS BILLS BONDS.     [iV/.  2,  TiV/c  3 1 , 

It  is  not  essential  to  these  instruments,  tliat  they  should  be  paya- 
ble to  order,  bearer,  or  assigns;  though,  without  this,  they  are  not 
negotiable,* 

ll'a  note,  bill,  orl)on{l,  be  drawn  payable  to  one  in  a  irrovg  name, 
he  may  sue  in  his  right  name,  and  show  the  mistake  on  the  trial,'' 

(C)  The  icords  '■^order^'''  '••hearei\^''  or  '■'assigns.'''' 

If  the  words  "order,"  "bearer,"  and  "assigns,"  be  omitted,  the 
instrument  cannot  be  negotiated,  so  as  to  authorize  the  assignee  to 
sue  upon  it  in  his  own  name.     When  these  instruments  are  payable 

"to  the  order  of  A B ,"  they  are  in  ellect  payable  to  "A 

B ,  or  order." 

If  there  be  no  words  in  the  instrument  making  it  assignable;  as, 
where  it  is  made  payable  to  some  specified  person,  without  the 
words  "or  order,"  "or  bearer,"  "or  assigns,"  the  indorsee  has, 
nevertheless,  a  right  of  action  thereon  against  the  indorser;  (but 
not  in  iiis  own  name,  against  any  one  of  the  antecedent  parties;)  lor 
every  indorser  is  in  the  nature  of  a  new  drawer,  and  the  indorser 
stands  to  his  indorsee,  in  the  the  law  of  merchants,  the  same  as  the 
drawer."^ 

The  contract  which  the  law  prima  facie  implies  from  a  blank  in- 
dorsement of  a  promissory  note  not  negotiable,  is,  that  the  note  is 
due  and  jniyable  according  to  its  tenor;  that  the  maker  shall  be  able 
to  pay  it,  when  it  comes  to  maturity;  and  that  it  is  collectible  by 
the  use  of  due  diligence.*^ 

(D)  Where  payable. 

The  name  of  the  place  where  these  instruments  are  made,  is 
generally  written  v.'ith  the  date,  thus:  "Cincinnati,  June  1,  1845." 
This  does  not  make  it  the  duty  of  the  holder  to  go  to  that  place  to 
obtain  his  money.  Its  only  effect,  in  general,  is,  that  it  will  be  evi- 
dence of  the  place  where  made,  and  may  thereby  control  the  con- 
struction to  be  given  to  the  instrument.  Contracts  are  interpreted 
according  to  the  law's  where  made;^  and  therefore,  if  a  note  be  given 
in  England,  only  five  per  cent  interest  could  be  recovered  upon  it 
here;  if  made  in  New  York,  seven  per  cent:  unless  it  appeared  that 
the  note  was  executed  with  a  view  of  payment  hcre.(]) 

Bonds,  bills,  and  notes,  however,  are  sometimes  made  payable 
at  a  particular  place,  by  their  express  terms.  Even  in  such  cases, 
a  demand  at  that  place  is  not  necessary  before  suit,  in  order  to  ren- 
der the  maker  or  acceptor  liable  to  an  action;   but  if  the  defendant 

Ca)  Slat.  587.  (c)  3  East  482;  Ptra.  478. 

(b)  3  Ens.  C.  L.  Rop.  229:  5  Hals.  Rep.  32:3;  (d)  11  Conn.  213.  440- 

10   Co.    122;   10  Mass.   Rep.  360;    13  (c)  Wrisiit'.s  Rep.  10.  180. 

Johns.  Rep.  38.  (g)  1  Ohio  Rep.  483;  2  Pet.  543;  8  Cow.  271. 

(1)  See  page  351. 


§2,  (C) (F).]       PROMISSORY    NOTES BILLS BONDS.  387 

prove  that  the  maker  or  acceptor  was  there  ready  to  pay  the  in- 
strument, this  would  he  a  good  defence,*  and  the  maker  or  accept- 
or, it  is  said,  would  not  be  liable  until  a  subsequent  personal  de- 
mand.(l) 

When  a  note,  bond,  or  bill,  is  expressly  payable  at  a  particular 
place  on  demand,  it  is  safest  to  make  a  demand  at  the  place,  before 
suing  the  maker  or  acceptor,''  When  the  holder  intends  to  make 
indorse?'s  liable,  and  the  instrument  is  payable  at  a  particular  place, 
he  should  make  a  demand  at  the  place  of  payment  mentioned  in 
the  instrument.(2) 

(£')    In  what  payable. 

These  instruments  must  be  for  the  payment  of  money  only.  If 
payable  to  you  '^or  order,"  "-or  bearer,"  '•'■or  assigns,"  in  goods,*^  or 
in  bank  bills,*^  or  if  to  pay  you  "or  order  fifty  dollars,  and  deliver  up 
a  horse,"®  or  to  pay  any  thing  else  besides  money;  they  are  mere 
contracts,  binding,  to  be  sure,  but  not  negotiable,  so  as  to  authorize 
the  person  to  whom  they  are  assigned,  to  sue  in  his  own  name.s 
It  follows,  then,  that  when  the  condition  of  a  bond  is  for  the  pny- 
ment  of  any  thing  else  but  money,  it  cannot  be  negotiated,  so  as  to 
entitle  the  assignee  to  sue  in  his  own  name. 

(F)     When  payable. 

They  must  not  only  be  for  the  payment  of  money,  but  they  must 
be  payable  absolutely  at  some  period,  or  upon  some  condition  that 
must  happen.  They  cannot  be  made  payable  out  of  a  particular 
fund;  but  must  absolutely  bind  the  acceptor,  or  maker,  to  pay. 
Therefore,  an  instrument  which  is  to  be  paid,  '^provided  A  shall 
not  pay  it,"  or  within  so  many  days  ''-after  the  plaintifl'  shall  mar- 
ry," or  out  of  the  defendant's  pension,  or  out  of  certain  funds  when 
received,  or  the  like,  cannot  be  treated  as  a  negotiable  instrument, 
but  may  be  a  good  contract.  If  such  a  condition,  or  the  particular 
fund  out  of  which  the  instrument  is  to  be  paid,  is  indorsed  on  the  bill, 
bond,  or  note,  this  will  be  the  same  as  if  the  indorsement  were  con- 
tained in  the  body  of  the  instrument.     But,  if  the  condition  upon 

(a)  1  Oliio  Rep.  483;  2  Pet.  543;  8  Cow.  271.      (d)  5  Cow.  18f5;  GIJ.  103;  lOScrg.  and  Raw.94. 

(b)  5  Taunt.  30;  10  East,  112;  8  Cow.  272.     (o)   1  Stra.  127. 

7.J,  7^cr  Savage,  C.  J.  (g)  3  Kent'3  (.'oiii.  7G. 

(c)  3  Oliio  Rep.  51. 

(1)  III  tlie  case  of  Caldwell  v .  Cusaidy,  (8  Cow.  271,)  it  was  holden,  tliat  wlien 
a  promissory  note  is  payable  at  a  particular  place,  on  a  day  certain,  if  the  maker 
was  there  ready  to  pay  at  the  time  and  place,  he  may  plead  it  as  he  would  plead 
any  other  tender,  and  must  brini^  tlie  money  into  court,  in  order  to  render  the  ten- 
der available.  I  think  tiiis  decision  very  reasonalile,  thouj^h  a  dilu-rent  opinion  is 
intimated  by  some  of  the  judg-es,  in  the  case  of  C'o?m  v.  Grmo,  (1  Ohio  /{('/>■  484;) 
but  the  question  did  not  arise  in  the  cause.  See  as  to  the  ettect  of  a  tender  yene- 
rally,  Fart  2,  Title  35,  §7. 

(2)  See  §11  of  this  Title. 


388  PROMISSORY  NOTES BILLS BONDS.  [Pr/,  2,  TitleS]^ 

^vhich  the  instrument  is  to  be  paid,  w».s7  happen,  as  a  promise  to 
pay  "when  A.  B.  dies,"  or  on  the  first  of  January,  1890,  or  tiie  like, 
this  will  not  destroy  the  negotiable  character  of  the  instrument;  for, 
as  the  event  must  happen,  the  money  must  be  paid  at  some  period  of 
time,  and  it  is  no  matter  how  distant  the  time  may  be.* 

If  no  time  be  mentioned  for  payment,  it  is  payable  immediately, 
the  same  as  if  expressly  made  payable  07i  demand}'  In  such  case, 
and  in  all  other  cases,  the  time  of  payment  cannot  be  altered  by 
verbal  or  parol  testimony,  showing;  that  tlw?  parties  intended  at  the 
time  the  instrument  was  written,  that  it  should  be  payable  at  a  dif- 
ferent time.'^ 

A  note,  or  bond,  payable  on  demand,  may  be  sued  in:imcdiately, 
without  demand.'' 

If  the  instrument  is  payable  so  many  days  aflcr  date,  the  day  of 
the  date  is  excluded  in  calculating  the  time  when  it  will  be  due.® 
If  an  instrument  have  no  date,  but  the  time  of  its  payment  refers  to 
its  date,  the  time  it  was  executed  may  be  proved  and  will  be  taken 
as  the  date,  in  calculatin;^  the  period  when  it  shall  become  due.^ 

{G)   The  icords  '•'•for  value  received.'''' 

These  words  are  not  necessary  in  the  instrument,  nor  in  the  in- 
dorsement; and  if  omitted,  it  is  for  the  defendant  to  prove  that  there 
was  no  value  received  for  the  instrument,  or  transfer,  as  a  conside- 
ration is  presumed  until  the  contrary  appear.''  On  the  other  hand, 
if  these  words  are  in  the  instrument,  or  indorsement,  they  do  not 
prevent  a  party  from  ehowing  that  the  instrument  was  made,  or  in- 
dorsed, without  value  or  consideration.  We  shall  hereafter  see, 
that  under  some  circumstances,  the  maker  of  a  bond,  bill,  or  note, 
is  not  permitted  to  show  a  want,  or  fiiilure  of  consideration. 

(H)   What  words  are  siifficieni  to  constitute  a  pi^ojnise^  S^c. 

A  bill,  note,  or  bond,  is  not  confined  to  any  set  form  of  words. 
A  promise  to  ''deliver,"  or  to  be  '^ accountable,"  or  to  be  '^ respon- 
sible" for  so  much  money,  amounts  to  a  sufficient />romz5e  in  a  note. 
So  these  words:  "Borrowed  of  J.  S.  fifty  dollars,  which  I  agree 
never  to  pay  him  or  order,"  is  a  good  note,  and  the  word  "never," 
will  be  rejected;  and  the  fifty  dollars  considered  due  imniediately, 

A  paper,  signed  and  sealed  in  these  words:  "I  do  acknowledge 
to  A.  B.  or  order,  by  me,  twenty  dollars,  on  demand,  for  doing  the 
work  in  my  garden;"  is  a  good  bond.'  '•'•J  have  agreed  to  pay"  so 
much,  "I  acknowledge  to  owe,  &:c.,"  '-I  am  content  to  pay,  &c.," 
are  binding;  and  when  a  bond  is  so  written,  it  is  good.'' 

(a)  Wil!es,396.  (g)  2  Bog.  and  Pul.  173. 

(b)  Johns.  Rop.  374.  (h)  SM.and  S.3.t1;   11  Enc  C.  L.  Rep.  286. 
(C)  T(1   111.  189.                                                          (i)   1  Vent.  238.  rited  4  Putcrsd.  Ab.  591. 

(d)  \^  Mas:..  Rep.  131.  (k)  4  Pctersd.  Ab.  590. 

(e)  8  Id.  453. 


§2,  (G),(H),(I),  3.]    PROMISSORY  NOTES BILLS BONDS.  389 


(i)  Blank  signatures  delivered  to  he  Jilled  up. 

It  is  customary,  when  a  person  wishes  to  borrow  money  on  a 
note,  or  bill,  to  procure  the  signature  of  other  persons  to  a  blank 
piece  of  paper,  which  is  afterwards  filled  up  with  a  note  or  bill. 
The  note  or  bill,  so  filled  up,  is  good  and  binding  on  the  parties  who 
have  signed  the  blank.*  And  where  A  asked  B  to  sign  and  seal  a 
blank,  who  did  so,  with  an  understanding  that  it  should  only  be 
filled  up  with  a  note  or  bond  for  two  hundred  dollars,  and  A  after- 
wards filled  it  up  with  a  bond  for  seven  hundred  dollars,  and  then 
negotiated  it  to  C,  who  knew  nothing  of  this  fraud  by  A;  it  was 
decided  that  B  was  liable  to  C  for  the  whole  amount  of  seven  hun- 
dred dollars.''  But  if  C,  when  he  received  the  instrument,  had 
known  of  the  understanding  between  A  and  B,  the  latter  would  not 
have  been  liable  on  the  bond.''(l) 


Sec.  III. — HOW  these  instruments  are  transferred. 

This  is  by  delivery  and  indorsement,^  if  payable  to  order  or  as- 
signs; and  either  by  delivery  merely,®  or  by  delivery  and  indorse- 
ment, if  payable  to  bearer. 

If  the  instrument  is  payable  to  A  or  order,  or  to  A  or  his  assigns, 
or  to  the  order  of  A,  and  A  indorses  it  in  blank,  it  is  afterwards 
transferable  by  mere  delivery.  When  so  payable,  in  order  to  be 
transferable  by  delivery  merely,  it  must,  in  the  first  instance,  be 
transferred  by  the  indorsement  of  A,  unless  A  is  a  fictitious  person, 
in  which  case  no  indorsement  is  necessary  for  its  transfer;  and  the 
instrument  is  inoperative  for,  but  valid  against,  all  acquainted  with 
the  fact  that  A  is  a  fictitious  person;  and  an  innocent  holder  may 
treat  it  as  payable  to  bearer.s 

A  note  in  this  form,  '•^Due  the  bearer  fifty  dollars,  which  I  prom- 
ise to  pay  A  or  order,"  is  a  note  payable  to  A  or  order,  and  must  be 
transferred,  in  the  first  instance,  by  his  indorsement.'' 

(a)  5  Cranch,  142;  4  Mass.  Rep.  45.  (e)  2  Ohio  Rep.  228. 

(b)  5  Ohio  Rep.  222.  (ff,   Chitty  Jr.  B.  {Ed.  1334),  7. 

(c)  6  Ohio  Rep.  246.  (h)   1  Johns.  Rep.  143. 

(d)  2  Ohio  Rep.  60. 

(I)  It  lias  been  decided  in  New  York,  tliat  if  a  blank  note  sig-ned  or  indorsed 
for  the  purpose  of  beini^  discounted  at  bank,  is  filled  up  according-  to  tbe  agree- 
ment of  tile  parties,  and  after  the  bank  lias  refused  to  discount  it,  the  person  for 
whose  accommodation  tiie  note  is  sig^ned,  neg'otiates  it  to  another  person  who 
knows  all  these  circumstances:  this  does  not  amount  to  a  fraud,  and  such  person 
can  recover  ag-ainst  the  parties  to  the  note.  9  Wend.  Rep.  172;  5  Id.  G6;  17 
Johns.  Rep.  176;  4  Cow.  Rep.  567;  but  see  5  Wend.  Rep.  .566.  Hut,  if  the  note 
was  to  be  returned  to  tiie  parties  who  sig^ned  or  indorsed  it,  in  case  the  bank  re- 
fused to  discount  it,  or  there  was  any  other  want  of  g^ood  faith,  and  sucli  third  per- 
son knew  this  when  he  received  the  note,  then  he  could  not  recover,  except 
against  the  person  to  whom  he  actually  advanced  the  money.  10  Johns.  Rep. 
198;  6  Ohio  Rep.  249. 


390  PROMISSORY  NOTES  —  BILLS  —  BOiN'Ds.  [P;*/.  2,  Title  3\y 

A  note  or  bond,  after  it  is  given,  and  a  bill  of  exchange  after  it  is 
accepted,  cannot  be  transferred  in  any  way  for  only  a  part  of  the 
sum  due;  for  a  personal  contract  cannot  be  tlius  apportioned  or  di- 
vided: and  such  a  transfer  would  pass  no  interest  to  the  holder 
claiming  under  it,  as  against  the  acceptor  or  maker.  Where  a  part 
of  a  note  has  been  paid,  it  may  be  indorsed  over  for  the  residue; 
and  if  a  bill  of  exchange  be  indorsed,  before  acceptance,  for  part 
of  the  money  then  due  on  it,  the  drawee  may,  by  accepting,  render 
himself  liable  to  separate  actions  for  the  two  parts.*  A  bill  may  be 
negotiated  before,  as  well  as  after  it  is  accepted.  A  note,  bill,  or 
bond,  may  be  transferred  after  it  is  due;  but  the  rights  of  the 
holder,  as  will  be  seen  hereafter,  are  quite  ditierent  from  those  of  a 
holder  to  whom  the  instrument  is  indorsed  before  it  is  due. 


Sec.  IA'. —  who  may  transfer  these  instruments. (1) 

The  payee,  or  his  agent  authorized  so  to  do,  must  make  the  first 
indorsement,  or  other  transfer.'' 

Where  an  indorsement  is  necessary  to  make  a  transfer  of  a  bill, 
or  note,  as  in  the  case  of  a  full  or  special  indorsement;  no  indorse- 
ment will  convey  a  legal  right  to  an  instrument,  (except  as  against 
the  person  making  it,"^)  unless  it  be  made  by  a  person  authorized  to 
transfer  it.  As  where  a  bill  payable  to  Ilenry  Davis  or  order,  was 
sent  by  post,  and  got  into  the  hands  of  a  w'rong  Ileni-y  Davis^  who 
indorsed  it  to  the  plaintiff;  held,  that  the  holder  could  not  recover 
the  amount  from  the  acceptor,  though  there  was  no  particular  de- 
scription on  the  bill  of  the  person  entitled  to  transfer  it:  for,  as  the 
indorsement  was  not  made  by  the  person  to  whom  the  bill  was  re- 
ally payable,  it  was  a  forgery,  and  could  confer  no  title. "^ 

Where  a  bill  is  indorsed  to  one  man  and  deposited  with  him  as 
trustee  for  the  use  of  another;  the  right  of  transfer  is  in  the  former 
only. 

It  is  established  by  a  variety  of  cases,  that  if  a  bill,  note,  or  bond, 
be  deposited  with  or  indorsed  to  a  party  for  a  particular  or  special 
purpose,  a  person  taking  the  bill  with  a  knowledge  of  the  circum- 
stances, cannot  acquire  a  right  therein  which  would  contravene  the 
purpose  for  which  it  was  so  deposited  or  indorsed. 

If  the  payee  be  dead,  the  right  to  indorse  belongs  to  his  executor 
or  administrator;*  but  if  they  indorse  these  instruments,  they  will 
become  liable  personally;  and  the  words  "as  executors,"  or  '^as  ad- 
ministrators," annexed  to  tlieir  names,  which  are  necessary  to  show 
their  connection  with  the  instrument,  will  not  prevent  their  liability 
to  pay  out  of  their  own  property,  if  they  have  not  sufficient  for  that 
purpose  belonging  to  the  estate. 

(a)  Chitty  on  Bills,  (JV.  Y.  Ed.  1830,)  139.  (d)  4  T.  R.  28. 

(b)  3  Kent's  Com.  88.  (ej  3  Wil.  Rep.  1.  5. 

(c)  1  B.  and  A.  218;  Stra.  516. 


(1)  As  to  a  transfer  by  a  thief,  and  the  effect  thereof,  see  §16. 


§4,  5,  (A).]  PROMISSORY  NOTES BILLS BONDS.  391 

If  the  payee  has  taken  the  benefit  of  the  insolvent  law,  then  the 
comQiissioner  of  insolvents,  to  whom  he  has  assigned  his  property, 
may  transfer  the  instrument;  and  he  also  will  be  personally  liable. 

If  several  persons  are  holders  of  the  instrument,  and  they  are 
partners,  either  of  them  may  indorse  in  the  name  of  the  partner- 
ship; but  if  they  are  not  partners,  or  the  partnership  has  been  dis- 
solved, then  they  must  all  join  in  the  transfer  or  indorsement. 

If  the  instrument  is  payable  to  A, /or  the  use  of  B^  A  is  the  pro- 
per indorser,  and  not  B. 

If  the  instrument  is  payable  to  a  single  woman,  vvho  afterwards 
marries,  an  indorsement  afterwards  made  by  her  v^-ill  be  void;  her 
husband  alone  has  the  right  of  indorsing. 

It  is  proper  to  here  add,  that  an  indorsement  may  always  be  so 
made  as  to  limit  the  liability  of  the  indorser.(l) 

Sec.  V. OF  THE  INDORSEMENT. 

(.•1)  Its  Form. 

No  particular  form  of  words  is  necessary  in  an  indorsement, 
either  to  pass  a  property  in  the  bond,  bill,  or  note,  or  to  enable  the 
holder  to  collect  it  as  the  agent  of  the  indorser. 

It  may  be  written  on  the  back,  or  any  other  part  of  the  instru- 
ment, by  the  holder,  or  any  other  person  duly  authorized  by  him; 
but  in  the  latter  case,  the  agent  should  indorse  expressly  as  agent; 
thus:  '••A — B — ^hy  J — ^1 — ,  his  agent f  or  should  merely  w"rite 
the  name  of  his  principal,  for  whom  he  acts. 

If  the  indorsement  is  made  by  an  agent  in  his  own  name,  and  so 
that  it  does  not  appear  that  he  made  it  as  agent,  it  will  not  be  good,^ 

No  particular  form  of  appointment  is  necessary  to  enable  an 
agent  to  charge  his  principal,  by  signing  his  name  to  a  negotiable 
instrument;  such  authority  may  be,  and  indeed  generally  is,  given 
by  word  of  mouth.  A  party  may  derive  an  authority  to  accept, 
draw,  or  indorse  bills  of  exchange,  from  having  been  appointed  a 
general  agent;  as  in  the  case  of  a  factor  for  a  merchant  residing 
abroad,  the  principal  is  bound  by  all  his  acts;  or  he  may  derive 
such  authority  from  a  special  appointment  for  that  purpose.^  An 
authority  m-y  be  implied  from  circumstances,  if  a  person  has  fre- 
(juently  subscribed  negotiable  instruments  for  another,  and  that 
other  has  recognized  such  acts.*^ 

If  an  agent  indorse  without  authority  a  bill  payable  to  order.,  such 
indorsement  conveys  no  right  of  action,  except  against  the  party 
indorsing;  but  the  unauthorized  delivery  of  a  bill,  or  note,  payable 
to  bearer.,  gives  a  fair  bona  fide  holder  a  claim  on  the  other  pjn-ties,*^ 

(a)  Cliitty  Jr.  on  Bills,  35,  a.  (c)  3  Esp.  60;  4  Canipb.  188;  3  Eug.  C.  L. 

(b)  Cliitty,  33.  Rep.  386. 

(d)  Baylcy.  Ii9, 130;  Burr.  452. 1516. 


(1)  See  the  next  section  Oi  tliis  Title. 


392  PROMISSORY  NOTES  —  BILLS  —  BONDS.    [Prt.  9^  Title  3\, 

It  is  a  universal  rule  that  a  man  w  lu)  puts  his  name  to  a  bill  of 
exchange,  thercl)y  makes  hiinseli'  personally  liable,  unless  he  states 
upon  the  I'ac'^  ol"  the  bill  tfiat  he  subscribes  xifor  (inotlicr^ov  hy  jrro- 
cur(ttion  ot"  another,  which  .ire  words  of  exclusion.  Unless  he  says 
plainly,  '•  I  atn  the  mere  scribe^'  lie  becomes  liable.* 

The  plaintiir  employed  the  defendant  to  procure  him  bills  on 
Portugal,  the  defendant  did  so,  and  indorsed  the  bills  without  any 
qualification  to  the  plaintiff  at  Paris;  held,  that  he  was  liable  to  the 
plaintiff  on  the  indorsement,  and  that  he  co^uld  not  give  any  evidence 
to  show  that  he  acted  as  agent  to  the  plaintiff  in  so  doing.* 

But  if  a  man  employed  to  get  a  bill  discounted,  be  unable  to  ef- 
fect it  without  indorsing  it,  though  he  bind  himself  to  the  indorsee, 
he  will  be  entitled  to  be  indemnified  by  his  employer,  though  liis 
employer's  name  be  not  on  the  bill.'' 

In  the  commercial  world,  it  is  usual  for  the  agent  to  indorse  for 
his  principal  in  the  form  following: 

"Per  procuration  of  J A ,  [the  name  of  the  agent^^ 

A B ."  [the  principal^ 

Or  thus: —  "A B ,  \JJie  principall]^ 

per  procuration  of  J A ,"  [the  agentl] 

Or  thus: —  "A B ,  [the  jjrincipal^'] 

By  J A ,"  [the  age7it.'] 

Or  thus: —  "J A ,  [the  <igent^ 

For  A B 1''^^)  [l^ltf^pnncipal^ 

{B)  Of  an  indorsement  in  hlank^  and  its. legal  effect. 

An  indorsement  in  blank  is  made,  by  the  party  merely  writing 
his  name  pn  the  back  or  face  of  the  instrument,  which  tiie  indorsee 
or  holder  may  at  any  time,  even  on  the  trial,  fill  up  by  writing  over 
it,  "-Pay  the  contents;"  or,  "-Pay  the  contents  to  the  indorsee," 
[naming  him.']  "or  order,"  "bearer,"  or  "assigns;"  or  other  words 
of  like  import. 

A  blank  indorsement  makes  the  bill,  bond,  or  note,  transferable 
by  mere  delivery,  whether  it  was  made  payable  to  bearer,  order, 
or  assigns ;''  and  where  a  bill  was  indorsed  in  blank,  and  two  plain- 
tiffs sued  upon  it  as  indorsees  jointlip  it  was  holden  that  they  were 
not  obliged  to  prove  either  that  they  received  the  bills  so  indorsed 
as  partners,  or  that  it  was  indorsed  to  them  jointly.® 

(a)  2  Eng.  C.  L.  Rep.  58;  19  Id.  302.  (d)  2  Dall.  396. 

(b)  Baylev,  72.  (c)  2  Eng.  C.  L.  Rep.  4G3. 

(c)  Chitty  Jr.  on  Bills,  (ed.  1834,)  9,  a. 

(1)  It  is  decided  in  the  case  of  the  New  Eng.  Mar.  Ins.  Co.  vs.  De  Wolf,  (8 
Pick.  Rep.  56,)  that  the  rule  that  an  attorney  or  a.e;-cnt,  to  bind  his  principal 
must  sign  tlie  name  of  tlic  principal,  applies  only  to  deeds  and  instruments  under 
seal,  and  not  to  contracts  which  are  not  under  seal.     See  p.  20. 


§5,  (B),(C).]  PROMISSORY  NOTES BILLS BONDS.  393 

The  holder  of  a  bond,  bill,  or  note,  indorsed  in  blank,  may  fill  up 
the  indorsement  with  any  name  he  pleases;  and  the  person  whose 
name  is  inserted  will  be  deemed  righttlilly  entitled  to  sue  as  indor- 
see:"^ and  if  such  indorsee  and  phiintiti"  receive  the  instrument  mere- 
ly as  the  agent  of  the  true  owner,  and  to  collect  it,  he  has,  notwith- 
standing, a  right  to  sue  and  recover  upon  it  in  his  own  name.''  But 
if  it  appear  from  proof,  that  the  plaintitf  procured  the  note  by  fraud, 
and  had  no  property  or  right  to  collect  it,  he  cannot  maintain  a  suit 
upon  it. 

The  cancelation  of  an  indorsement  by  mistake,  will  not  discharge 
the  indorser;  nor  the  striking  out  of  the  acceptance  by  mistake. 

No  other  use  can  be  mode  of  a  blank  indorsement,  than  simply 
pointing  out  the  person  to  whom  the  note,  bond,  or  bill  is  to  be 
paid.^ 

When  a  note  is  made  by  A,  payable  to  B,  and  indorsed  by  C  at 
the  time  it  is  made,  C  becomes  an  original  promisor  and  surety  for 
A,  on  the  note,  and  may  be  sued  as  sucli.s 


(C)   Of  an  indorsement  in  full^  and  its  effecL 

An  indorsement  in  full,  is  where  the  indorser  fills  up  his  indorse- 
ment; thus  —  "Pay  the  contents  to  G H ,  or  order;"  or  to 

that  elfett. 

A  negotiable  instrument  indorsed  with  directions  to  pay  the  con- 
tents to  A,  omitting  the  words  "or  order,"  "bearer,"  or  "assigns," 
is  further  negotiable  by  the  holder;  for  a  bond,  bill,  or  note,  negoti- 
able in  its  origin,  can  be  restrained  only  by  words  of  express  re- 
striction by  the  payee.  Such  indorsement  in  full,  transfers  the  in- 
terest of  the  payee  to  the  person  named  in  the  indorsement;  and 
nothing  but  canceling  the  indorsement,  or  the  indorsee's  transfer- 
ring and  indorsing  it  again,  will  divest  him  of  the  legal  title.^  The 
holder,  iiowever,  may  cancel,  or  strike  out  the  indorsement  to  him, 
though  a  full  indorsement;  and  may  also  strike  out  all  prior  indorse- 
ments in  blank,  except  the  first.'  A  bill,  bond,  or  note,  indorsed 
after  it  is  due,  is  equivalent  to  drawing  a  new  bill  by  the  indorser, 
on  the  maker  or  drawee  of  the  instrument,  in  favor  of  the  indorsee, 
payable  at  sight;''  and  the  indorsee  takes  the  instrument  itself,  sub- 
ject to  every  defence  that  existed  in  favor  of  the  previous  parties 
before  it  was  indoi-sed.(l) 

The  elfect  of  a  full  indorsement  is  to  restrain  the  negotiability  of 
the  bill  or  note;  as  if  A  indorse  a  bill  thus:  "Pay  B  or  order:"  and 
sign  his  name;  the  instrument  thereby  is  payable  to  B  only,  or  his 
order  and  cannot  be  transferred  without  the   indorsement  of  B. 

(c)  3  Wliea.  173.  18.1;  6  Cow.  Rep.  455.  (Ii)   15  Johns.  Rep.  249,  per  Spencer,  J. 

(d)  7  Cow.  174;  9  Mass.  Rep.  423;  25  Ens.     (')  Teak's  N.  P.  Kep.  225;  1  Painc's  Kcp.  15(>; 

C.  L.  Rep.  236.  1  Dall.  193. 

(e)  3  Kent's  Coin.  KU.  (kj  8  Scr;;.  and  Raw.  351;  9  Jolins.  Rep.  121. 
(g)  8  Pick.  Rep.  122. 

(1)   See  further  upon  tliis  subject,  §14  of"  this  Title. 

50 


394  PROMISSORY  NOTES  —  BILLS — BONrs.    [Prt.  2,  Title  31, 

But  B  may  afterwards  indorse  it  in  blank,  or  to  some  specified  per- 
son without  adding  ''or  order;"'  and  it'  such  person  indorse  it,  any 
subsequent  indorsee  may  sue  any  of  the  antecedent  parties  to  the 
bill.  As  where  the  defendant  drew  a  bill  made  payable  to  S,  or 
order;  and  tS  indorsed  it  to  W,  who  indorsed  it  to  the  phiintitf:  it 
was  contended  that  as  there  were  no  words  to  authorize  W  to  as- 
sign it,  he  had  no  such  power;  but  the  court  held,  that  as  the  bill 
was  at  first  assignable  by  S,  as  being  made  payable  to  him  or  his 
order,  and  all  S's  interest  was  transferred  to  W,  the  right  of  assign- 
ing it  was  transferred  also,  and  the  indorsee  had  judgment  against 
the  drawer. 

(D)  Of  a  7-estrictive  indorsement. 

A  restrictive  indorsement  restrains  the  payment  of  the  instrument 

to  the  indorsee  only,  as   by  saying,  "-Pay  the  contents  to  G 

H ,  only;''  and  the  indorsee  cannot,  in  such  case,  negotiate  the 

instrument  any  farther:  but  stating  in  the  indorsement  the  consid- 
eration upon  which  the  bond,  bill,  or  note,  was  given,  is  not  for  that 
reason  a  restrictive  indorsement.  But  it  seems,  that  no  one  but  the 
payee  of  a  note,  bond,  or  bill,  can  stop  its  negotiability  by  such  re- 
strictive indorsement;  and  if  a  subsecjuent  indorsee  undertake  to  do 
so,  by  making  such  restrictive  indorsement,  the  holder  may,  not- 
withstanding, negotiate  and  transfer  it.^ 

Bills  and  notes  are  frequently  indorsed  in  this  manner:  "-Pray 
pay  the  money  to  my  use;"  in  order  to  prevent  their  being  filled  up 
with  such  indorsement  as  passes  the  interest.  This  is  a  restrictive 
indorsement,  which  prevents  the  indorsee  irom  transferring  the  in- 
strument, or  converting  the  produce  of  it  to  his  own  use. 

{E)  Of  the  form  of  an  indorsement  of  a  note.^  bill,  or  hond.^  where 
demand  and  notice  of  non-pa xjiaent  are  waved. 

When  the  indorser  of  a  bill,  bond,  or  note,  does  not  wish  the  in- 
dorsee or  holder  of  the  instrument  to  make  demand  of  payment  of 
the  maker  or  drawee,  and  to  give  notice  of  non-payment,  the  in- 
dorsement should  contain  an  agreement  to  that  ellect.  It  may  be 
indorsed  on  the  instrument  in  the  following  form:  '-Pay  the  con- 
tents to  G II ,  or  order.  Demand,  and  notice  of  non-pay- 
ment of  contents  at  maturity,  hereby  waved:"  the  indorser  signing 
his  name  thereto. 

{F)  Form  of  indorsement  jcithoiit  recourse  on  the  indorser. 

When  the  indorser  wishes  to  transfer  an  instrument  without 
being  himself  liable,  in  case  it  is  not  paid,  and  the  indorsee  is  willing 
to  take  it  at  his  own  risk,  the  indorsement  may  be  thus: 

(a)  1  Esp.  Rep.  180;  Burr.  Rep.  1216;  Doug.  Rep.  637.  These  are  the  cases  to  wliich  Cliitty 
refers,  as  establisliins  a  dilTcrcnt  doctrine. 


§5,(D),(E),(F),C,7.]  PROMrSSORY  notes bills BONDS.  3'.    > 

Pay  the  contents  to  A B ,  or  order,  without  recourse  on 

me. 
(  .  G H . 

Upon  such  an  indorsement,  there  is  an  implied  warranty  that  the 
instrument  is  not  a  forgery.'' 


Sec.  VI. —  OF  the  rights  and  obligations  of  the  drawer  of  a  bill 

BEFORE   ACCEPTANCE.    , 


By  drawing  and  dehvering  a  bill  to  the  payee,  the  drawer  en- 
gages absolutely  and  irrevocably,  to  the  payee  and  every  su])sequent 
holder  of  the  bill,  that  the  drawee  is  capable  of  binding  himself  by 
his  acceptance;  that  on  the  bill  being  duly  presented,  the  drawee 
will  accept  it;  and  that  the  drawee  will  pay  it  on  its  becoming  due, 
if  demanded  in  proper  time.  On  failure  in  any  of  these  particulars, 
and  notice  thereof  being  given  to  the  drawer,  he  will  be  immediate- 
ly liable  to  the  holder,  whoever  that  may  be,  for  the  amount  of  the 
bill.  And  where  acceptance  is  refused  by  the  drawee;  or  the  drawee 
is  unaljle  to  bind  himself  by  an  acceptance;  or  when  the  bill  is  pre- 
sented to  him.  he  will  only  give  a  partial,  or  limited,  or  conditional 
acceptance;  an  action  lies  immediately  against  the  drawer,  upon 
notice  being  given  to  him  of  the  non-acceptance,  without  waiting 
for  the  time  when  the  bill  becomes  due,. if  payable  at  a  future  day. 

The  indorser  is  in  no  ease  liable  over  to  the  acceptor.  The  draw- 
er, however,  is  liable  over  to  the  acceptor  or  drawee,  if  the  drawee 
accepts  and  pays  the  bill,  when  he  is  not,  in  fact,  indebted  to  the 
drawer,  or  has  no  money  or  effects  in  his  hands  belonging  to  him. 


Sec.    VII. OF'THE  presentment  of  a  BfLL  FOR  ACCEPTANCE, 


When  a  person  holds  a  bill  of  exchange  which  is  payable  at  a 
future  day,  he  may  call  on  the  drawee  to  ascertain  whether  he  will 
pay  it,  or  not,  when  it  shall  be  due.  This  is  called  a  presentment 
of  a  bill  for  acceptance. 

In  general,  it  is  not  necessary  to  present  the  bill  to  the  drawee 
before  it  is  due,  to  ascertain  whether  he  will  accept  it  or  not.  If, 
however,  a  bill  be  payable  a  certain  number  of  days  after  s-iglit^  as, 
for  instance,  three  days  after  sight,  it  must  of  course,  be  seen  l)y  the 
drawee,  before  it  will  be  due.  It  must,  therefore,  be  presented  to 
the  drawee,  who  then  states  whether  he  will  pay  it  when  it  shall  be- 
come due.  If  he  says  he  will  pay  it,  he  immediately  accepts  the  bill, 
by  writing  on  the  back  of  it  his  name,  under  the  word  "accepted;" 
or  he  may  accept  it  by  parol,  declaring  that  he  accepts  it;  or  by 
promising,  before  it  is  di-awn  or  afterwards,  to  a(^cept  it  or  pay  it. 

(Ii)   1  Carapb.  Rep.  100. 


396  PROMISSORY  NOTES BILLS BONDS.    [Prt.'2^  Titlc  3\  ^ 

If  he  promise  before  it  is  draum^  to  accept  it,  and  the  payee  knows 
of  such  promise,  and  has  taken  the  l)ill  on  the  faith  of  it,  this  will 
be  a  binding  acceptance;  but  it  would  be  otherwise  if  the  payee  did 
not  know  of  such  promise,  or  had  given  no  credit  to  it.  A  promise 
to  accept  a  bill  not  drawn,  will  not  amount  to  an  acceptance  after 
it  is  drawn,  unless  some  i)erson  be  induced  to  take  the  bill  on  the 
faith  of  such  promise. 

The  drawee,  after  he  has  accepted  the  bill,  is  called  the  acceptor, 
as  well  as  drawee. 

The  acceptance  is,  in  law,  a  promise  to  pay  the  bill  when  due. 

If  the  bill  is  payable  at  sight,  or  so  many  days  after  sight,  it  should 
be  presented  for  acceptance  within  the  same  reasonable  time  as  a 
bill,  note,  or  bond,  is  required  to  be  presented  for  payment,  where 
it  is  payable  on  demand.  The  law  upon  this  subject  will  be  stated 
hereaiter.(l) 

The  neglect  to  present  such  a  bill  for  nccejitance  within  a  rea- 
sonable time,  will  discharge  the  di-awer  aiul  indorsers  from  all  lia- 
bility. 

An  acceptance  once  completed  and  issued,  cannot  be  revoked. 
But  if  the  drawee  writes  an  acceptance,  he  may  afterwards  cancel 
it,  while  the  bill  remains  in  his  possession,  and  before  he  delivers  it 
out;  though  it  was  formerly  held  otherwise. 

It  sometimes  happens,  that  the  draw^ee  is  unwilling  to  accej)t  the 
bill  absolutely,  but  is  willing  to  accept  it  subject  to  some  contingen- 
cy, limitation,  or  condition,  either  with  regard  to  the  amount  to  be 
paid,  or  the  time  and  place  of  payment,  or  to  the  happening  or  not 
happening  of  some  event.  But  the  payee  or  holder  of  the  bill  has 
a  right,  when  any  such  conditional  or  limited  acceptance  is  oflered, 
to  reject  it,  and  consider  acceptance  as  refused.  He  is  at  liberty, 
however,  if  he  sees  fit,  to  agree  to  it,  and  then  the  acceptor  will  be 
bound  according  to  his  acceptance  only.  Thus:  if  he  accepts,  pay- 
able when  A  makes  hitn  a  deed  for  certain  land,  he  will  not  be  lia- 
ble until  the  deed  is  made  by  A.  In  such  case,  if  .the  holder  of  the 
bill  wishes  to  avail  himself  of  the  conditional  acceptance,  without 
losing  his  remedy  against  the  drawer  and  previous  parties,  he  should 
give  them  notice  immediately  of  the  conditional  acceptance.  It 
has  already  been  observed,  that  except  when  a  bill  is  payable  at  a 
limited  period  after  sight,  the  holder  may  retain  it  in  his  possession 
until  it  becomes  due,  according  to  its  tenor,  w^ithout  previously  pre- 
senting it  to  the  drawee  for  acceptance.  But  if  a  bill,  not  payable 
at  a  limited  period  after  sight,  be  presented  to  the  drawee  for  his 
acceptance  before  it  is  due,  and  acceptance  is  refused,  the  holder 
must  give  the  parties  whom  he  wishes  to  make  liable  to  him  imme- 
diate notice  of  the  presentment  and  non-acceptance;  and  they  may, 
immediately  after,  be  sued  by  the  holder,  without  waiting  until  the 
bill  is  due.  Where  it  is  necessary,  on  account  of  the  bill  being  pay- 
able at  a  fixed  period  after  sight,  to  present  the  bill  for  accept- 
ance, the  holder  must,  if  acceptance  is  refused,  give  immediate  no- 


(1)  See  page  401. 


§7,  C]  PROMISSORY  NOTES BILLS BONDS.  397 

tice  thereof  to  the  parties  whom  he  wishes  to  make  hable  to  him; 
and  they  may  be,  immediately  afterwards,  sued  by  the  holder,  with- 
out waiting  until  the  time  mentioned  in  the  bill  has  expired.  A  bill 
which  has  been  presented  for  acceptance,  and  upon  which  accept- 
ance has  been  refused,  is  considered  as  dishonored;  and  the  duties 
of  the  several  parties  in  relation  to  giving  notice  of  non-acceptance, 
and  the  consequences  of  neglect  or  delay  in  giving  such  notice,  are 
precisely  the  same  as  where  payment  of  a  note,  bond,  or  bill,  has 
been  duly  demanded  and  payment  refused. 

If  the  drawee  refuses  to  accept  the  bill,  he  is  not  in  general,  lia- 
ble upon  it  to  any  of  the  parties.  So,  if  he  refuses  to  pay  a  bill, 
when  due  and  presented  to  him  for  payment,  and  which  he  has  nei- 
ther accepted  nor  promised  to  accept,  he  is  not  liable  upon  it.  It 
is  only  an  acceptance,  or  a  promise  to  accept,  which  renders  him 
responsible. 


Sec.  VIII. OF    THE    RIGHTS  AND  OBLIGATIONS  OF  THE  ACCEPTOR  OF  A 

BILL,  AND  THE  MAKER  OF  A  NOTE  OR  BOND. 


It  has  already  been  stated,  that  the  drawee  of  a  bill  of  exchange, 
after  he  has  accepted  it,  is  called  the  acceptor. 

The  obligations  of  the  acceptor  of  a  bill,  and  the  maker  of  a  note, 
or  bond,  are  precisely  the  same.  They  must  pay  the  payee,  or 
the  subsequent  holder,  when  the  instrument  becomes  due,  and  no 
demand  of  payment  is  necessary  before  suit  is  brought  against  them; 
unless  the  instrument  is  payable  at  sight,  or  a  specified  time  after 
sight;  in  which  case,  the  instrument  should  be  presented  for  pay- 
ment. But  with  this  exception,  no  demand  is  necessary,  to  render 
them  liable,  even  though  the  instrument  be  payable  on  demand^  or 
at  a  particular  place  and  specified  time.*(l)  It  follows,  that  in  an 
action  against  the  acceptor  of  a  bill,  or  the  maker  of  a  note  or  bond, 
the  defendant  crmnot  prevent  a  recovery  against  him  by  showinir 
that  payment  \¥as  not  demanded  when  the  instrument  became 
due,  or  that  time  and  indulgence  has  been  given  to  the  drawer, 
payee,  or  indorsers.  Indeed,  the  rules  in  relation  to  demand  and 
notice  of  non-payment  or  non-acceptance,  have  no  bearing  upon 
the  liability  of  the  acceptor  of  a  bill, -or  the  maker  of  a  note  or 
bond;  and  consequently,  whatever  those  rules  may  be,  or  however 
violated,  it  does  not  discharge  them. 

If  a  person  accept  a  bill  as  nffevf^  without  any  authority  to  do 
so,  neither  he  nor  the  supposed  principal  is  lial)lc  on  the  bill.  But 
he  will  be  liable  to  a  special  action  on  the  case  for  falsely  represent- 
ing that  he  had  authority.'' 

(a)   1  Ohio  Rep.  48J.  (1))  23  Erif;.  C.  L.  Rop.  38. 


(1)  See  page  386, 


398  PROMISSORY  NOTES BILLS BONDS.    [Pr/.  2,  Titlc  31  ^ 

A  bill,  bond,  or  note,  which  has  been  negotiated  by  the  payee, 
and  is  afterwards  paid  and  taken  up  by  him,  has  not  yet  performed 
its  office;  it  is  not  satisfied  and  extinguished,  so  that  it  can  no  lon- 
ger be  negotiated  and  sued  upon,  until  the  accc})tor  or  maker  has 
paid  tlie  amount. 

The  acceptor  of  a  bill  is,  in  general,  liable  on  his  acceptance  to 
the  drawer,  if  the  drawer  has  paitl  the  bill  after  receiving  due  no- 
tice of  its  non-payment  by  the  acceptor.  We  shall  hereafter  see 
that  there  are  some  exceptions  to  this  rulc.(l) 

M^hen  a  note,  bond,  or  bill,  has  been  indorsed,  and  costs  recover- 
ed from  the  payee,  drawer,  or  indorsei's,  they  cannot,  in  general, 
recover  those  costs  from  the  maker  of  the  note,  or  the  acceptor  of 
the  bill.*  It  seems,  however,  that  if  a  person  who  became  a  party 
to  a  bond,  bill,  or  note,  for  the  mere  accommodation  and  benefit  of 
the  maker,  payee,  drawer,  drawee,  or  indorser,  be  sued,  he  may  re- 
cover his  costs  from  the  party  for  whose  accommodation  he  signed 
the  instrumcnt.''(2) 


Sec.    IX. OF    THE    RIGHTS  AND    OBLIGATIONS    OK    THE    INrORSER  OF  A 

BILL,    NOTE,    OR    BOND;    AND    OF  THE  DRAWER  OF  A  BILL, 
AFTER  ACCEPTANCE, 


The  liability  of  the  maker  of  a  note  or  bond,  and  of  the  acceptor 
of  a  bill,  we  have  just  seen,  does  not,  in  general,  depend  upon  a 
demand  being  made  upon  them,  nor  upon  a  notice  of  non-payment 
being  given  to  the  other  parties.  The  indorsers,  however,  of  a 
bond  or  note,  by  the  act  of  indorsing,  engage  to  pay  it  on  condition 
that  the  maker  is  called  upon  by  the  holder,  and  fails  on  demand  to 
pay  according  to  his  engagement,  and  notice  is  given  in  due  time 
to  such  indorsers  of  the  faihire  to  pay.  So,  the  engagement  of  the 
indorsers  ,of  a  bill,  and  of  the  drawer  after  the  acceptance,  is,  that 
the  bill  will  be  paid  by  them  to  the  holder,  in  case  demand  is  made 
of  the  acceptor  and  he  I'efuses  to  pay,  and  they  haj'e  notice  hereof. 

If  the  instrument  is  negotiated  after  it  is  due,  and  is  thereby 
opened  to  every  equitable  defence,  yet  a  demand  must  be  made 
upon  the  drawee,  or  maker,  and  notice  of  non-payment  given  the 
indorsers  and  drawer,  in  order  to  charge  them. 

If  demand  be  made,  and  notice  of  non-payment  be  given,  then 
the  holder  may  sue  any  or  all  of  the  preceding  parties;  and  each 
indorser  who  pays  the  instrument,  is  entitled  to  its  possession,  and 
may  sue  any  of  the  preceding  parties  who  have  received  due  notice 
of  non-payment. 

In  order  to  illustrate  the  rules  in  relation  to  the  lial)ility  of  the 

(a)  17  Eng.  C.  L.  Rep.  457;  19  Id.  338;  4  Taunt.  4G4.  (1.)  16  Jolins.  Rep.  70. 

(1)  See  §14  of  this  Title. 

(2)  A3  to  what  is  accommodation  paper,  see  §11  of  tiiis  Title. 


§9.]  PROMISSORY  NOTES BILLS  — BONDS.  399 

seA-eral  parties,  let  us  suppose  you  draw  a  bill  of  exchange  on  S,  in 
favor  of  A,  and  A  indorses  it  to  B,  and  B  to  C,  and  C  to  D,  and  S 
accepts  the  bill;  that  is,  proniis-es  to  pay  it  when  it  shall  become  due. 
Demand  is  made  of  S  by  D,  and  he  neglects  to  pay,  and  notice  is 
given  thereof  by  D  to  C;  and  C  gives  B  notice,  and  B  gives  A  no- 
tice, and  A  gives  you  notice,  of  the  demand  and  non-payment. 

Now,  so  long  as  D  remains  unpaid,  no  one  but  D  can  sue  the  par- 
ties; but  they  are  all  liable  to  him,  and  he  may  commence  separate 
suits,  and  recover  separate  judgments,  and  issue  execution,  against 
all,  until  he  is  paid:  or  he  may  sue  any  one  he  pleases. 

If  B  pays  D,  this  does  not  give  B  any  right  to  sue  C,  because  C 
indorsed  the  bill  after  he  did,  and  is  only  liable  to  D;  for  an  endor- 
ser is  only  liable  to  the  person  to  whom  he  indorses  it,  and  to  those 
to  w^hom  the  instrument  is  afterwards  transfei'red. 

If  C  pays  D,  then  C  may  sue  all  or  either  of  those  who  became 
parties  to  the  instrument  before  he  did.   . 

If  you  pay  your  own  bill,  S  alone  will  be  liable  to  you,  on  his  ac- 
ceptance; and  if  he  accepted  the  bill  merely  to  accommodate  you, 
or  witliout  consideration,  he  will  defeat  your  action. 

The  same  rules  are  applicable  to  a  negotiable  bond  or  note. — 
Thus,  if  you  hold  the  note  or  bond  of  S,  and  it  is  indorsed  by  you 
to  A,  and  by  A  to  B,  and  by  B  to  C,  and  by  C  to  D,  and  demand 
of  payment  is  made  by  D  of  S,  and  notice  is  given  of  the  demand 
and  non-payment,  to  C,  B,  A,  and  yourself;  all  are  in  like  manner 
liable  to  be  sued,  and  have  the  same  right,  after  paying  the  note,  or 
bond,  to  sue  and  recover  against  prior  indorsers  and  parties. 

It  should  be  remarked  here,  although  the  subject  will  be  again 
mentioned,  that  each  indorser  of  a  negotiable  instrument,  who  has 
due  notice  of  its  dishonor.(l)  is  lia.ble,  although  the  holder  omit  to 
give  notice  to  the  parties  whose  names  are  on  the  instrument  before 
that  of  such  indorser.  But  the  holder,  by  omitting  to  give  notice 
to  such  previous  parties,  precludes  himself  from  recovering  against 
them,  if  they  do  not  receive  due  notice  from  any  other  party  to  the 
instrument  to  whom  they  are  liable.  Each  indorser,  therefore,  has 
the  benefit  of  a  notice  of  the  dishonor  of  the  instrument,  given  by 
other  parties  to  it;  but  if  an  indorser,  receiving  notice,  wish  to  make 
the  drawer  of  a  bill,  or  the  indorsers  of  a  bond,  bill,  or  note,  liable 
to  himself,  he  had  better  give  them  notice;  for  if  they  do  not  re- 
ceive notice  from  him,  nor  from  any  other  party  to  the  instrument 
to  whom  they  are  liable,  they  will  be  discharged. 

Actual  payment  to  any  one  of  the  indorsers  of  these  instruments, 
will,  of  course,  discharge  all  the  parties  from  liability  to  the  indorser 
so  paid;  and  will  entirely  discharge  all  who  inilorsed  the  instrument 
after  the  person  did  who  is  paid.  Such  payment  will  also  discharge 
all  the  actions  brought  l)y  the  person  who  is  paid,  unless  judgment 
has  been  obtained  in  them.  Where,  therefore,  the  holder  commen- 
ces several  suits  against  diiierent  parties,  he  should  be  careful  not 

(1)  A  bill,  note,  or  bond,  which  has  been  duly  presented  for  acceptance  or  pay- 
ncnt,  and  acceptance  or  payment  refused,  is  said  to  be  "  dii/tonurtd," 


400  PROMISSORY  NOTES BILLS llOXDS.    [Prt.  ^^  Tllle  S\^ 

to  receive  satisfaction  olonc  suit  witliout  ])aymcnt  of  the  costs  of 
the  whole,  unless  judgment  has  been  obtained  in  all  the  others;  for 
in  such  case,  judgment  in  the  other  suits  will  be  rendered  against 
him  for  costs,  if  the  defendant  show  that  he  has  been  paid.*  But 
upon  judgments,  he  may,  altlK)ugli  paid  by  the  satisfaction  of  one 
judgment,  issue  execution  uj)()n,  and  recover  the  costs  of  the  other 
suits  and  judgn)ents. 

Though  the  holder  of  a  bill  may  issue  execution  against  all  the 
])arties,  he  cannot,  after  levj-ing  the  full  amount  of  the  debt  on  the 
goods  of  one,  issue  ixji.fa.  to  atlect  the  goods  of  another,  except  as 
to  costs  in  the  action  against  the  latter. 

Where  a  note,  bond,  or  bill,  has  been  indorsed,  and  costs  are  re- 
covered against  an  indorser,  he  cannot  recover  those  costs  from  the 
person  who  indorsed  the  instrument  to  him,  nor  from  the  maker  of 
the  note  or  bond,  or  the  acceptor  of  the  bill.''(l) 

There  is  no  division  of  the  loss,  or  contribution,  between  indors- 
ers  of  notes,  bonds,  or  bills,  as  tlierc  is  between  sureties,  when  they 
arc  compelled  to  pay  the  debt  of  their  j)rincipal.  The  only  excep- 
tion to  this  rule,  is  where  the  making  of  the  instrument  and  its  in- 
dorsement are  one  transaction,  and  the  indorsements  are  merely 
made  for  the  use  and  accommodation  of  one  of  the  parties  to  the 
instrument,  and  to  give  him  credit  upon  it.  In  such  case  the  in- 
dorsers  are  co-sureties,  and  cannot  recover  more  than  a  proportion- 
able share  from  each  other.''(2) 

Where  a  note,  bond,  or  bill,  has  been  transferred,  and  it  after- 
wards comes  back  to  the  possession  of  an  indorser,  he  is  presumed, 
unless  the  contrary  be  shown,  to  be  the  right  holder,  and  need  not 
produce  any  rccei])t  or  reindorsement,  in  order  to  maintain  an  ac- 
tion upon  it.*^  An  indorser  who  pays  and  takes  up  one  of  these  in- 
struments, may  afterwards  negotiate  it,  as  it  is  not  extinguished 
until  paid  by  the  acceptor  or  maker. 

There  is  a  distinction  in  regard  to  the  liability  of  an  indorser^  and 
ofa  party  who  transfers  by  mere  delivery,  without  indorsing  the 
instrument.  In  the  latter  case,  the  name  of  the  transferrer  not  be- 
ing on  the  instrument,  he  can  in  no  instance  be  sued  thereon^  even 
by  the  party  to  whom  he  delivers  it.  But  he  may  be  sued  by  the 
party  to  whom  he  delivers  it,  for  the  original  consideration  or  debt, 
in  respect  to  which  the  instrument  was  delivered,  unless  it  were 
either  expressly  agreed,  or  fairly  implied  from  the  circumstances, 
that  the  instrument  should  be  taken  as  a  payment,  at  all  risks.(3) 

(a^  2  Mass.  Eep.  171.  (d)  9  B.  and  C.  618;  17  Ens.  C.  L.  Rep.  457  ; 

(b)  1  Ohio  Rep.  420.  4  C.  and  P.  194;  9  Jolnis.  Rep.  131:   19  Eng.  C.  L. 

(c)  8  Wiiea.  172;  6  Cow.  449.  Rep.  338;  16  Jolir.s.  Kep.  70;  4  Taunt.  464. 


(1)  For  the  exception  to  this  rule,  see  p.  331. 

(2)  See  pag-e  3.11. 

(3)  See  Chitty  ,(r.  on  Bills,  42  «,  and  the  autliorities  there  cited. 

The  rules  hiitl  down  on  pug-es  212,  213,  in  relation  to  the  liubility  of  the  trans- 
ferrer of  choscs  in  action,  are  also  applicable  to  cases  where  a  note,  bond,  or  bill, 
ofa  third  person,  is  delivered  without  indorsement. 


§10.]  PROMISSORY  NOTES BILLS BONDS.  401 

If  a  bill,  note,  bond,  or  other  claim,  be  taken  without  indorsement 
by  way  of  sale  or  exchange  for  other  property,  or  for  other  negotia- 
ble instruments,  or  by  way  of  dhcount^  and  not  as  a  security  for 
money;  the  transferrer,  if  he  acted  in  good  faith  and  without  know- 
ledge that  the  instrument  was  worthless,  will  not  be  liable,  unless 
lie  agreed  to  be  so.''(l) 

We  have  already  seen,  that  the  holder  of  a  negotiable  instrument 
may,  by  his  indorsement,  transfer  his  interest  in  such  a  manner  as 
to  exclude  all  claims  upon  himself,  individually,  in  case  the  instru- 
ment is  not  paid. (2) 

Sec.  X. AT    AVHAT    TIME    DEMAND    OF    PAYMENT    MUST    BE    MADE  FROM 

THE  DRAWEE  OR  ACCEPTOR  OF  A  BILL,  OR  THE  MAKER  OF 
A  NOTE  OR  BOND,  SO  AS  TO  MAKE  THE  INDORSERS,  &C., 
LIABLE, 

When  a  bill,  bond,  or  note,  is  payable  on  demand;  or  is  negott- 
ated  after  it  is  due;  or  the  time  of  payment  is  not  mentioned  in  it; 
or  it  is  payable  on  sight,  or  a  certain  number  of  days  after  sight; 
payment  should  be  demanded  of  the  drawee  or  maker,  by  the  holder, 
loitkin  a  reasonable  time  after  he  received  the  instrument.*^  This 
reasonable  time  must  depend  on  the  distance  the  parties  live  from 
each  other,  the  course  of  the  mail,  &c.  It  should,  if  the  parties 
reside  in  the  same  place,  be  presented  for  payment  the  next  day 
after  it  is  received  at  fartlicst.  It  is  always  safest  to  present  it  the 
day  of  receiving  it;  and  it  should  not  be  neglected  until  the  next 
day,  unless  for  some  substantial  reason.  In  general,  if  it  is  not  pre- 
sented on  the  day  it  was  received,  nor  on  the  next  day,  where  the 
parties  reside  in  the  same  place,  a  subsequent  demand  would  be 
deemed  too  late;  and  the  drawer  and  indorsers  would  be  discharged. 
So,  where  the  maker  of  a  note  or  bond,  or  the  drawee  or  acceptor 
of  a  bill,  resides  in  a  different  place  from  the  holder,  and  the  holder 
neglects  to  forward  the  bill  for  demand  the  day  he  receives  it,  and 
also  the  next  day,  this  would  be  deemed  an  unreasonable  delay.* 
It  is,  however,  a  mixed  question  of  law  and  fact,  whether  a  holder 
has  been  guilty  of  an  unreasonable  delay,  depending  upon  the  cir- 
cumstances of  each  particular  case;  such  as  the  situation  of  the  par- 
ties, and  accidents  not  arising  from  negligence.^  Great  prompti- 
tude, however,  is  required  on  the  part  of  the  holder.  If  the  instru- 
ment is  continually  kept  in  circulation  by  transfers,  this  would  ex- 
cuse an  immediate  presentment  of  an  instrument  payable  at  sight, 
or  at  a  certain  time  after  sight.^  And  it  seems  that  circumstances, 
transpiring  at  the  time  of  making  the  bill  or  the  indorsement  f)f  the 
note  or  bond,  which  show  that  the  parties  did  not  contemplate  an 
immediate  demand,  may  be  given  in  evidence,  and  will  excuse  an 

(b)  Chitty,  jr.  on  bills,  42  a,  68.  (c)  7  Cow.  705. 

(c)  6  Cow.  Rep.  484;  20  Johns  Rep.  14G;       (g)  7  Taunt.  159;  3  Kent's  Com.  92;  20  Johng. 

13  Mass.  131.  Hep.  146. 

(d)  Chitty  on  bills,  (N.  Y.  Ed.  1830,)  271. 

(1)  See  pages  Sl2,  213.  (2)  See  pages  394,  396. 

51 


402  PROMISSORY   NOTKS BILLS BONDS.     [^Plt.  3,  Titk  31, 

immediate  demand  and  notice  of  non-()a}'iiicnt.  Thus:  where  the 
indorser  of  a  note,  payable  on  demand,  stated  to  the  indorsee  at  the 
time  of  the  indorsement,  that  the  maker  of  the  note  would  get  into 
business  again  and  pay;  this  was  liolden  sullicient  to  show  than  an 
immediate  demand  was  not  contemplated;  and  that  a  demand  with- 
in a  few  weeks,  and  notice  given  within  two  or  three  months,  were 
sufficient  to  render  the  indorser  liable,'' 

It  will  be  observed  that  the  above  rules  relate  to  notes,  bonds, 
and  bills,  payable  on  demand,  or  negotiated  after  due,  or  when  the 
time  of  payment  is  not  mentioned  in  the  instruments,  or  are  paya- 
ble on  sight,  or  a  certain  number  of  days  after  sight. 

According  to  the  law  merchant,  and  now  by  a  late  statute,'  where 
an  instrument  is  payable  at  a  day  certain,  or  so  long  after  date,  or 
after  sight,  or  any  other  particular  day  mentioned  in  it,  it  is  not  pay- 
able at  the  time  tfie  words  naturally  import;  but  the  acceptor  or  ma- 
ker has  until  the  third  day,  and  the  wiiole  of  the  third  day,  alter  and 
exclusive  of  the  day  of  payment  named  in  the  instrument,  to  make 
the  payment.  Thus:  when  a  note  is  payable  on  the  first  day  of 
Septendjei',  it  is  not  due  until  the  fourth^  and  on  the  fourth  a  demand 
should  be  made.     These  three  days  are  called  days  of  grace. 

The  rule  is,  that  in  order  to  charge  the  parties  collaterally  liable 
on  the  bill,  check,  or  note,  (as  the  drawer  or  indorsers  of  the  first 
two  instruments,  and  the  payee  and  indorsers  of  the  note,)  present- 
ment for  payment  must  be  made  on  the  exact  day  tlie  instrument, 
according  to  its  tenor,  becomes  payable,  after  allowing  the  days  of 
grace,  if  payable  at  a  fixed  time;  (a  day  before  or  a  day  after  will 
not  sulfice;)  and  xvithbi  a  7-caso7iabIe  time.,  in  case  the  instrument  be 
payable  upon  demand. 

If  the  instrument  be  dated  the  27///  of  August.,  payable  tico  months 
after  date,  it  will  be  due,  and  should  consequently  be  presented  for 
payment,  on  the  30//i  of  October. 

It  will  therefore  be  observed,  1st,  that  the  day  of  the  date  is  ex- 
cluded or  not  reckoned;  2dly,  that  the  months  are  cakndar.,  not  lunar 
months;  3dly,  that  thei'e  are  allowed  iJii-ce  days''  grace  after  the  27th 
October,  when  the  two  calendar  months  expire;  and  4thly,  that  the 
third  day  of  grace  is  the  day  on  which  the  demand  and  payment 
are  to  be  made. 

If  a  bill  or  note  be  payable  twenty-one  or  other  number  o{  days., 
or  so  many  months,  after  sight.,  a  presentment  to  the  drawee  of  the 
bill  or  maker  of  the  note,  is  obviously  necessary  to  fix  the  day  of 
payment.  The  twenty-one  days  (&,c.)  wnll  be  calculated  from  the 
day  when  such  presentment  was  complete,  not  t'eclioning  that  day; 
as,  if  presented  on  the  2d  of  September,  the  twenty-one  days  will 
expire  on  the  23d  September;  and,  adding  the  three  days'  grace,  the 
money  will  be  payable  on  the  26th  September. 

The  three  days  of  grace  are  allowed  on  bills,  &c.  payable  in  this 
country,  whether  payable  after  date  or  after  sight;  or  after  demand; 
or  even,  it  seems,  when  payable  at.,  (not  after ^  sight;  or  on  a  day 

(b)  3  Wend.  75;  13  Mass.  Rep.  138,  per  Parker,  C.  J.  (i)  Stat.  588. 


§10,11.]  PROMISSORY   NOTES BILLS BONDS,  403 

expressly  named  on  the  face  of  the  instrument;  but  not  probably 
when  made  payable  on  demand. 

When  there  is  a  custom  to  make  demand,  and  c;ive  notice  on  the 
fourth  day,  the  custom  forms  a  part  of  the  contract,  and  the  parties 
are  bound  by  it.*^ 

When  the  third  day  of  grace  foils  on  a  Sunday,  or  a  great  holy- 
day,  as  the  fourth  of  July,  or  a  day  of  public  rest,  the  demand  must 
be  made  on  the  day  preceding.  According  to  the  law  merchant, 
a  demand  made  before  the  third  day  of  grace  is  a  mere  nullity,  and 
the  same  as  if  demand  should  be  made  before  an  instrument  is  due. 

By  a  late  statute  all  these  negotiable  instruments  are  entitled  to 
three  days  of  grace  in  the  time  of  payment,  and  demand  should  be 
made  on  the  third  day  of  grace  as  above  mentioned.*^ 

No  days  of  grace  are  allowed  on  negotiable  bills,  bonds,  and  notes, 
payable  on  demand,  unless  the  statute  abov^e  referred  to  requires  it. 
If  no  time  for  payment  is  mentioned  in  the  instrument,  it  stands  on 
the  same  footing  as  to  the  time  when  due  and  as  to  days  of  grace, 
as  if  expressly  made  payable  on  demand.  It  has  never  yet  been 
expressly  decided  in  England  whether  days  of  grace  are  allowed 
on  bills  payable  at  sight,  but  the  weight  of  authority  is  in  favor  of 
such  an  allowance. 

The  presentment  for  payment  must  always  be  during  the  usual 
hours  of  business  of  that  kind.  If  the  party  to  whom  presentment 
is  to  be  made,  be  not  in  business,  probably  a  presentment  at  any 
reasonable  hour  of  the  day  not  devoted  to  rest,  though  not  an  hour 
of  business,  amongst  men  of  business,  would  be  considered  suffi- 
cient; and  a  presentment  at  any  hour  will  suffice,  in  any  case,  if 
the  party  who  is  to  pay  be  met  with,  expressly  remain  to  give  an 
answer,  and  refuse  payment. 

The  consequence  of  an  omission  to  present  the  instrument  for 
payment  in  due  time,  is,  that  although  no  particular  injury  or  loss 
can  be  shown  to  have  arisen  from  the  neglect,  and  the  instrument 
would  not  have  been  paid  if  sooner  presented,  the  parties  to  the 
instrument  who  are  collaterally  liable  thereon,  as  the  drawer  and 
indorsers  of  a  bill,  and  the  indorsers  of  a  note,  or  bond,  are  respect- 
ively discharged  from  all  liability  upon  the  instrument;  and  also 
from  the  debt  or  damages  on  account  of  which  it  was  given. ^ 

The  above  rules  in  relation  to  the  time  of  demand,  and  the  conse- 
quences resulting  from  omission  or  delay  in  making  demand,  are 
settled  law  in  most  of  the  States  of  this  Union.  They  are  easy  to 
be  understood,  steady  in  their  obligation,  healthful  to  business,  and 
have  grown  out  of,  and  been  tested  by,  the  practical  experience  of 
many  generations. 

Si:C.  XI. OF  THE  MODE  lU  WHICH  DEMAND  ML'ST  BE  MAI'E. 

A  demand  upon  one  of  two  or  more  joint  makers  of  a  note  who 
are  not  partners,  is  sufficient  to  charge  an  indorscr.^  A  demand 
upon  one  of  several  partners  is  also  deemed  a  demand  upon  all. 

(f)  9  When.  581;  1  1  M.  '131;  I  Pet.  U.  S.  Rep.  25. 

(il)  Slat.  58H.  (0)  2  Burr.  C69.  (g)  1  Wilcox'i  Uep.  6. 


404  PROMISSORV  NOTKS liU-f-S BONIS,      [P/7. '2,  T///e31, 

A  demand  cannot  be  made,  by  merely  sending  a  letter  by  mail 
to  the  party  of  whom  payment  is  required.  As  the  person  upon 
"Vvhom  demand  is  made  will  be  entitled  to  the  instrument  as  a 
voucher,  in  case  he  pays  it,  the  person  who  makes  demand  should, 
at  the  time,  have  possession  of  the  instrument,  so  as  to  be  ready 
to  deliver  it  up;  for  the  demand  will  be  invalid,  if  the  drawee  or 
maker  refuse  to  pay,  on  account  of  the  non-j)roduction  of  tiie  in- 
strument.(l) 

In  order  to  make  the  demand,  deliver  the  bill,  note  or  bond,  or 
send  it  by  letter,  to  some  disinterested  person  who  can  be  a  wit- 
ness, and  request  him  to  make  the  demand,  pointing  out  to  him  the 
time.  Tiiis  letter,  with  the  instrument,  or  even  the  possession  of 
the  instrument  alone,  will  be  sufficient  evidence  of  authority,  to 
make  demand.^ 

The  demand  may  be  made  of  the  maker,  di-awee  or  acceptor, 
personally,  wherever  he  is  found,  even  though  the  instrument  be 
payable  at  another  place,  unless  he  object  on  that  account.''  If  he 
IS  gone  from  home,  it  should  be  presented  to  his  agent,  who  does 
business,  and  pays  money  for  him,  if  any  such  agent  can  be  found 
at  his  house,  or  place  of  business.'  If  he  be  absent,  and  have, no 
such  agent,  it  will  he  sufficient  to  make  the  demand  at  his  house,  of 
his  wife  or  servant,''  or  in  their  absence,  of  some  other  person  be- 
longing to  the  family;  or  if  no  pe^-son  be  at  home,  or  can  by  in- 
quiry be  found,  or  if  the  drawee  or  maker  has  absconded,  no  de- 
mand is  necessary.'  If  he  hns  changed  his  place  of  residence  to 
some  other  place  within  the  state,  the  holder  must  endeavor  to  find 
him,  and  make  the  demand  there;  but  if  he  has  removed  out  of  the 
State  subsequent  to  the  making  of  the  bond  or  note,  or  accepting 
the  bill,""  then  no  demand  is  necessary;  and  the  instrument  need  not 
be  even  presented  for  payment  at  the  former  place  of  residence  of 
the  acceptor  or  maker;"  unless,  indeed,  the  party  has  left  some  per- 
son there  to  do  his  business. 

If  a  particular  place  of  payment  is  nairied  in  the  instrument,  or 
in  the  acceptance,  the  holder  should,  of  course,  make  his  demand 
at  the  place,  even  though  the  drawee  or  maker  has  removed  out  of 
the  State,  or  absconded;  and  being  there  ready  to  receive  the  mo- 
ney is  sufficient." 

In  making  a  demand  of  payment,  a  request  to  pay  or  something 
amounting  to  it  should  be  made,  and  it  is  necessary  that  the  note 
should  be  present  ready  to  be  delivered  up  on  payment,  or  if  lost 
or  destroyed,  that  an  indemnity  should  be  tendered. 

The  same  demand  of  payment,  in  time  and  manner,  and  the  same 
notice  of  non-payment,  to  make  the  indorser  of,  a  note,  bond,  or 
bill,  liable,  is  also  necessary,  to  make  the  drawer  of  a  bill  respon- 
sible.    After  a  neglect   and   refusal  to  pay  upon   demand  of  the 

(g)  7  Mass.  Rep.  483;  18  Johns.  Uep.  230;  1     (1)  4  Mass.  Rep.  45. 

Pick.  401.  (ni)  9  Wliea.  598;  6  Mass.  449. 

(h)  3  Johns.  Ca.  71.  (n)  3  Ohio  Rep.  307. 

(i)  Camp.  Rep.  596.  (o)  6   Mass.   Rep.  524;   3   Kent's  Com.  99;  3 

(k)  2  Esp.  Rep.  512.  Ohio  Rep.  307. 

(1)  See  §16,  of  this  Title. 


§1  1,  12,  (A),(B).]    PROMFSSORY   NOTES BILLS BONDS.  405 

maker,  drawee  or  acceptor,  the  next  step,  if  you  mean  to  hold  the 
indorsers  and  drawer  liable,  is  to  give  them  notice  of  such  demand 
and  non-payment. 

Sec.  XII. OF  THE   NOTICE  OF  DEMAND  AND  NON-PAYMENT,  TO  BE  GIVEN 

TO  THE  DRAWER  OF  A  BILL,  AND  TO  THE  INDORSER  OF  A  NOTE, 
BOND,  OR  BILL,  SO  AS  TO  MAKE  THE  INDORSERS  &C.   LIABLE. 

(J[)  Hoiv  the  notice  should  he  given. 

This  notice,  if  the  parties  reside  in  the  neighborhood  of  the  holder, 
should  be  given  personally,  or  by  a  messenger,  sent  to  the  dwelling 
house;  and  in  such  case,  the  notice  must  be  personally  served  upon 
the  party  to  be  charged,  either  at  his  dwelling  house,  or  place  of 
business,  or  wherever  he  may  be  found.  If  the  party  to  be  charged 
is  temporarily  absent  from  home,  and  the  house  shut  up,  still  the 
notice  may  be  left  there;  and  whether  the  house  is  shut  up  or  not, 
it  should  be  left  in  such  a  manner,  as  may  be  reasonably  calculated 
to  bring  the  knowledge  of  it  home  to  him. 

If  the  parties  live  in  difierent  towns  or  townships,  the  notice  by 
letter  mny  be  forwarded  by  mail,  to  the  post  office  nearest  the  party, 
or  to  the  post  office  where  he  usually  receives  his  letters. p 

If.  the  letter  should  happen  to  miscarry,  this  will  make  no  difler- 
ence  as  to  the  rights  of  the  holder;  for  if  the  letter  is  properly  di- 
rected to  the  right  place,  and  sent  by  the  mail,  the  holder  is  not  re- 
quired to  see  that  it  actually  arrives.'*  Nor  is  it  necessary  to  send 
by  the  mail.  If  the  holder  choose,  he  may  send  the  notice  by  a  pri- 
vate conveyance;  and  it  would  be  a  good  notice,  though  it  should 
happen  to  arrive  a  little  behind  the  mail.  If  the  indorser  or  drawer 
be  dead,  the  notice  should  be  given  to  his  executors  or  administra- 
tors if  known  to  the  holder  on  incjuiry :  or  if  there  be  none  appointed, 
or  none  known  to  the  holder,  then  notice  directed  to  the  drawer  or 
indorser  by  mail,  or  left  with  his  family,  will  be  sufficien^t.^ 

{B)   What  the  notice  should  contain.,  and  the  form  thereof. 

It  is  not  necessary  that  the  notice  should  be  in  writing;  but  it  is 
generally  given  in  writing,  as  in  that  mode,  evidence  of  it  can  be 
better  preserved. 

No  particular  form  is  required,  but  it  should  inform  the  party 
that  a  demand  has  been  made  on  the  instrument,  payment  refused 
or  neglected,  and  that  he  to  whom  the  notice  is  given,  is  looked  to 
for  payment.  The  holder  may  inform  the  indorser  or  other  party 
of  this  himself,  in  the  presence  of  a  witness,  or  send  word  by  some 
other  person. 

In  order,  however,  to  prevent  all  future  difficulty,  the  better  way 
will  be  to  draw  up  a  notice,  substantially  as  follows: 

To  C D . 

I  have  this  dny  doinnndcd  of  E D ,  jiaymont  of  the  note 

(p)  3  Ohio  Rep.  407.  (q)  3  Kcnt'ii  Corn.  107. 


406  PROMISSORT  NOTES BILLii B0NJJ8,      [i^r/.  2,  7V/.  3  1 , 

made  by  him  to  you,  dated  January  1st.  1847,  for  sixty  dollars,  pay- 

ablo  ten  days  after  dale,  and  indorsed  by  you,  to  me.     E I) 

refused  payment,  and  I,  as  indorsee,  look  to  vou  for  payment. 

I  am,  &LC.  '  '    I '  J . 

January  11,  18  17. 

The  notice  can  be  easily  varied  to  meet  the  case  of  a  drawer  or 
indorser  ot"  a  bill,  or  a  iirst,  second,  or  third  indorser,  &:c. 

The  notice  will  be  nood,  althou<j;h  the  description  of  the  instru- 
ment be  not  exact,  if  it  contain  sulTicient  to  put  the  party  on  in- 
quiry. If  the  time  of  its  falling  due  be  mistaken,  or  the  name  of 
the  maker  or  acceptor,  still,  if  the  error  be  not  calculated  to  mis- 
lead, the  notice  will  be  good.  All  that  the  law  requires  is,  that  the 
notice  shall  convey  such  information,  as  may  be  fairly  presumed 
to  have  informed  the  party,  that  payment  of  the  instrument  had 
been  demanded,  and  that  he  was  expected  to  be  held  responsible 
upon  it.  It  need  not  state  that  no  personal  demand  could  be  made; 
for  what  is  equivalent  to  a  demand,  may  be  called  a  demand;''  and 
if  the  acceptor  or  maker,  on  demand  of  payment,  pay  part  of  the 
money  due,  this  need  not  be  mentioned  in  the  notice.' 

The  notice  is  sufficient,  if  it  state  the  fact  of  non-payment  only; 
and  it  is  not  necessary  to  state  in  the  notice,  expressly,  that  the 
holder  looks  to  the  indorser:  for  that  is  of  course  implied,  and  may 
be  presumed,' 

(C)   JVhen  the  notice  must  be  given. 


The  notice,  if  the  parties  reside  at  a  distance  from  each  other, 
must  be  given  by  the  first  direct,  convenient,  and  practicable  mail 
that  goes  on  the  day  next  after  the  day  demand  was  made  upon  the 
maker  of  the  note,  or  bond,  or  upon  the  drawee  or  acceptor  of  the 
bill.  Thus:  If  the  demand  of  acceptance  or  payment  was  made 
on  Thursday,  and  the  indorser  live  out  of  tlie  neighborhood,  tlie 
notice  may  be  sent  on  Thursday,  and  must  be  sent  by  the  mail  that 
goes  on  Friday,  or  put  in  the  post  oflice  on  Friday.  And  if  the  par- 
ties live  in  the  same  neighborhood,  the  notice  must  be  given  on 
Friday.''  Upon  receiving  notice,  an  indorser  has  the  same  time 
allowed  him,  to  give  notice  to  those  who  may  be  liable  to  him,  as 
is  before  stated  in  relation  to  the  holder.  Thus:  If  he  receives  no- 
tice on  Thursday,  he  may  send  or  give  notice  on  Thursday,  and 
must  send  or  give  it  on  Friday,  fcc.  And  so,  the  person  to  whom 
he  sends  notice,  has  the  same  time  allowed  him,  after  he  receives 
notice,  to  send  or  give  notice  to  those  whom  he  wishes  to  notify, 
in  order  to  make  them  liable  to  him;  and  so  on,  from  party  to 
party." 

(r)  8  Mass.  Kcp.  2G0.  (v)  1  Pick.  Kep.  401;  3  Kent's  Com.  104;  3 

(•)  16  Johns.  Rep.  61.  Wend.  170;  4  W.ish.  Cir.  C.  Rep.  464. 

(t)  1  Pick.  Rep.  401;  2  Pot.  U.  S  Rep. 543;         (w)  2  Camp.  Pep.  210,  (n.i 
11  Whea.  Hep.  431. 


§12,  (C),(D),  13.]    PROMISSCRT  NOTES BILLS BONDS.  407 


(D)    To  ichom^  and  by  rchom  notice  should  be  given. 

No  notice  is  of  course  necessary  to  the  maker  of  a  note  or  bond, 
or  to  the  drawee  of  a  bill,  that  payment  is  refused.  But  the  holder 
of  the  instrument  must  give  notice  of  demand  and  non-payment, 
to  all  the  other  parties  to  the  instrument,  whom  he  may  wish  to  sue. 
He  may  select  out  one  or  more  particular  indorser,  or  indorsers, 
and  give  only  him  or  them  notice,  and  this  will  be  sufficient;  but  he 
cannot  sue  the  drawer  or  other  indorsers,  to  whom  no  notice  is  given 
by  either  of  the  parties  to  the  instrument.  If,  for  instance,  a  note, 
bill,  or  bond,  is  indorsed  by  A  to  B,  by  B  to  C,  and  by  C  to  D:  here, 
if  D  wishes  to  sue  B  only,  he  may  give  him  alone  notice,  and  if  he 
give  B  alone  notice,  he  cannot  sue  A,  rinless  A  receives  notice  from 
B;  for  if  an  indorser  receives  notice  from  any  one  to  whom  he  is 
responsible,  he  will  be  liable  to  any  subsequent  indorser,  though  he 
may  have  received  no  notice  from  the  latter;*  and  in  this  instance, 
if  D  gives  notice  to  B  alone,  then  B,  in  order  to  make  A  responsible 
to  him  on  his  indorsement,  must  give  A  notice  of  the  demand  and 
non-payment.  If  A  receives  notice  from  B,  then  D  will  have  a 
right  to  claim  the  benefit  of  such  notice,  the  same  as  if  he  himself 
gave  it.  It  is,  however,  always  safest  for  an  indorser,  when  he  re- 
ceives notice  of  non-payment,  to  immediately  give  notice  to  the 
prior  indorsers,  to  whom  he  may  look  for  indemnity,  in  case  he  pays 
the  instrument;  for  a  drawer  or  indorser  of  a  bill,  or  indorser  of  a 
note,  or  bond,  who  docs  not  receive  notice  of  the  demand  and  non- 
payment, from  any  of  the  parties  to  whom  he  is  liable,  is  in  genera), 
thereby  discharged. 


SkC.    XIII. IN    WHAT    CASES  DEMAND,  AND  WHEN  BOTH  DEMAND,  AND> 

NOTICE  OV  NON-PAYMENT,  VriLL  BE  EXCUSED,  AND  WHEN 
NOT. 

A  bill  of  exchange  is  generally  presumed  to  be  drawn  under  tFw 
belief  that  the  drawee  has  money,  goods,  or  other  effects  of  the 
drawer,  in  his  hands,  out  of  which  he  will  be  able  to  pay  the  debt. 
Now,  if  the  drawee  has  not  in  fact,  any  effects  in  his  hands  belong- 
ing to  the  drawer,  and  the  drawee  does  not  owe  the  drawer,  and 
for  that  reason  he  refuses,  on  demand,  to  accept  or  pay  the  bill,  no 
notice  to  the  drawer  is  necessary.  This  exception  to  the  general 
rule  proceeds  on  the  ground,  tliat  the  drawer  has  been  guilty  of  a 
fraud,  in  drawing  a  bill  under  such  circumstances,  and  that  notice 
to  him  would  be  useless.  If,  however,  the  drawer  draw  the  bill 
under  the  honest  expectation  of  ell'ccts  being  in  the  hands  of  the 
drawee,  as  where  he  had  sent  goods  to  the  drawee,  which  had  not 
arrived;  in  such  cases,  notice  must  be  given  to  the  drawer.  So, 
also,  notice  must  be  given  to  the  drawer,  if  the  want  of  it  would 
produce  any  detriment  to  hirn:  as  for  instance,  if  notice  had  been 

(a)  5  Cow.  303. 


408  PROMISSORY  NOTES BILLS EONUS.      [P/'Z.  2,  T/7.  31, 

given,  and  the  bill  taken  up  and  paid  by  the  drawer,  he  would  have 
had  a  remedy  over  against  some  other  person. 

But  this  exception  only  relates  to  the  drawer,  for  the  indorsers 
of  a  bill  drawn  thus  fraudulent!}',  must  have  notice  of  the  demand 
and  nun-payment,  as  in  other  cases. 

If  demand  has  not  been  made,  and  notice  of  non-payment  of  a 
bill,  bond,  or  note,  has  not  been  given;  yet  a  subse([ucnt  promise 
to  pay,  by  the  party  entitled  to  notice,  will  amount  to  a  waver  of 
demand  and  notice;  provided  the  promise^  was  made  clearly  and 
unequivocally,  and  with  full  knowledge  of  the  fact,  that  there  was 
a  want  of  due  demand  and  notice.* 

Notice  is  excused  to  an  indorser  for  whose  accommodaliun  the 
instrument  was  indoi'sed;  for  then  he  is  the  one  who  is  ultimately 
liable  to  pay  it." 

If  the  maker  of  a  note  or  bond,  being  insolvent,  assigns  his  pro- 
perty to  an  indorser,  in  order  to  secure  such  indorser  against  his 
liability  as  indorser  of  the  same  bill,  note  or  bond,  in  such  case,  the 
indorser  who  has  received  the  assignment  will  be  liable  upon  his 
indorsement,  though  he  have  no  notice  of  the  demand  and  non- 
payment of  the  note  or  bond.''  So,  notice  is  not  necessary  to  an 
indorser,  who,  before  the  note  or  bond  is  due,  has  informed  the 
holder  that  the  maker  has  absconded,  and  requests  further  time  of 
payment,*^ 

\Vhen  a  malignant  fever,  or  pestilence,  like  the  cholera,  prevails 
at  the  indorser"s  place  of  residence,  delay  of  notice  to  him  until  the 
pestilence  has  subsided,  w  ill  be  excused.^ 

Demand  is  excused,  where  the  maker,  drawee  or  acceptor,  has 
absconded;  or  has,  since  the  instrument  was  given,  removed  out  of 
the  State  ;(l)  but  notice  of  non-payment  must  be  given  in  such  cases, 
to  charge  the  drawer  or  indorsers. 

When  a  party  wishing  to  make  demand,  or  give  notice,  is  igno- 
rant of  the  residence  of  the  di'awer,  maker,  drawee,  or  indorser,  it 
is  not  enoygh  that  he  barely  in{[uire  for  him  at  the  place  where  the 
instrument  is  payable;  but  he  should  inquire  of  others,  whose  names 
appear  upon  the  instrument.  If  he  use  all  reasonable  diligence  to 
find  out  where  the  party  resides,  and  is  unable  to  ascertain  it,  de- 
mand or  notice  upon  such  party  will  be  excused. 

When  the  drawee  or  maker  has  merely  removed  to  another  part 
of  the  State,  the  demand  should  be  made  at  his  new  abode,  if 
known;  if  not  known,  then  due  iufiuii-y  after  the  party,  with  a  view 
to  make  a  demand,  will  be  sufficient.^ 

Calling  at  the  drawer  or  indorsers  place  of  business  during  busi- 
ness hours,  and  knocking  loud  enough  to  be  heard,  and  repeating 
this  two  successive  days,  with  a  view  to  give  notice,  the  door  being 
each  time  locked,  is  enough  to  excuse  the  want  of  actual  notice.** 

(a)  12  Whea.  183;  1  T.  and  R.  712;  5  Johns.  (d)  1  Johns.  Ca.  99. 

Rep.  375.  (c)  2  M.  1. 

(b)  11  Johns.  Rep.  180.  (g)  Chilly,  Jr.  on  Bills,  49. 

(c)  5  Mass.  Rep.  170;  1  Serg.  and  R.  Rep.  334.  (h)  1  M.  and  S.  545. 

(1)  See  page  404. 


§13.] 


PROMISSORY   NOTES BILLS BONIiS. 


409 


Demand  and  notice  is  excused,  if  tlie  instrument  is  void  tor  for- 
gery; or  be  giv^cn  for  money  made  at  betting  or  gaming.® 

The  law  does  not  require  a  person  to  do  what  is  impossible  to  be 
done.  If  the  instrument  cannot  be  presented  for  acceptance,  or 
demand,  in  the  regular  time,  from  some  inevilahh  accident^  not  in- 
volving the  holder  in  any  negligence  or  blame;  as  the  detention  of 
the  instrument  by  adverse  winds;  rendering  a  presentment  or  de- 
mand in  due  time  impossible,  the  rule  shall  be  relaxed  in  favor  of 
the  holder,  and  the  delay  in  elTecting  the  presentment  or  demand, 
will  be  excused.  Still  the  earliest  possible  presentment  must  be 
made,  wdien  the  impediment  has  ceased. 

The  accidental  and  temporary  loss  of  the  instrument  by  the  hol- 
der, or  its  being  stohm  ivo\n  him,  will  also  excuse  a  delay  in  present- 
ing it  for  payment  or  acceptance.  In  these  cases,  is  is  proper  to 
inform  the  various  parties  of  the  cause  of  delay. 

If  a  bill  be  refused  acceptance,  and  notice  of  non-acceptance  has 
been  given,  it  is  not  necessary  to  demand  payment  upon  it,  nor  to 
give  notice  of  non-pay ment.S' 

The  insolvency  of  the  drawer,  or  drawee,  maker,  or  acceptor,  or 
the  death  of  the  maker,  drawee,  or  acceptor,  will  not  excuse  a  de- 
mand on  the  instrument,  and  notice:  nor  will  the  knowledge  in  the 
indorser,  at  the  time  he  indorsed  the  paper,  of  the  insolvency  of  the 
maker,  excuse  demand  and  notice.^  Indeed,  in  all  cases,  except  such 
as  come  within  the  principle  of  those  above  enumerated,  the  holder 
must  make  demand  of  payment,  and  give  notice  of  non-payment; 
otherwise  the  drawer  and  indorsers  will  be  discharged. 

Jt  has  already  been  stated,  that  a  person  who  delivers  one  of  these 
instruments,(l)  or  other  chose  in  action, (2)  without  indorsing  it^  may, 
under  some  circumstances,  be  sued  for  the  debt  or  consideration, 
in  respect  to  which  the  instrument  or  claim  was  delivered  by  him. 
Such  transferrer,  it  is  said,  cannot  require  from  the  holder,  the  strict 
observance  of  the  rules  above  laid  down,  in  relation  to  the  time  of 
demand  and  notice  of  non-payment.  For,  as  to  such  transferrer,  a 
formal  demand  may  be  excused,  by  showing  that  the  acceptor  or 
maker  had  become  insolvent  before  the  instrument  or  claim  became 
Hue;  that  it  would  not  have  been  paid,  if  presented;  that  the  de- 
fendant was  aware  of  the  fact,  and  that  no  injury  resulted  from  the 
otnission.'  But  if  no  such  excuse  exists,  then  demand  should  be 
made,  and  notice  should  be  given,  within  a  reasonable  time.''  In 
such  cases,  however,  and  also  where  a  person  by  an  independent 
memorandum,  has  guarantied  the  payment  of  a  note,  bond,  bill,  or 
<')lher  claim,  it  is  safest  to  m.nke  demand,  and  give  notice  with  the 
})romptness  herein  before  directed;  for,  it  is  clear,  that  if  loss  or 


(ej)  9  Mass.  Kep.  1. 
(k)  5  Jolins.  Rep.  375. 
(Ii)  :J  Kciit'.H  Corn.  1  U). 
(k)  lU.U).;  2  0liioKc|).  430. 


(i)  8  Knpf.  C.  L.  Pep.  R;  5  M.  nnd  S.  62; 
8  Kast,  242;  10  KiiK.  C.  L.  Rep.  145; 
7  I'ct.  U.  S.  liep.  128;  Cliiiiy,  Jr.,  on 
Bills,  48  a.  69;  12  Pet.  503.. 


(1)   Sec  paijc  400. 


(2)   Sec  piiijcs  212,  21.'), 


52 


410  rUOMISSORT  NOTES BlLLfi — ;BONl)_S.       [P/'Z.  2,  Tiif/c  3 1 , 

prejudice  has  accrued  to  tlic  transferrer,  or  guarantor,  lioin  delay 
in  uudvinii;  the  demand  and  giving  the  notice,  lie  will  be  disciiarged: 
at  least  to  the  extent  of  the  detrinient.'(l) 


SkC.  XIV. IN   VVilAX   UAst.:?  i  IIK  W  AN  1,  Oil  i- AILL  KK  OF  GONSIDKRATION.; 

ETC.,  MAY  BE  SET  UP  AS  A    LiEFENCE.(2) 


By  the  transfer  of  a  negotiable  instrument,  there  arc  a  great 
number  of  parties  connected  with  it ;  and  as  it  passes  from  holder 
to  holder,  each  one  who  transfers  it,  obtains  some  value  or  consid- 
eration from  the  immediate  party  to  whom  he  delivers  it.  It  will 
therefore  be  perceived,  that  upon  each  transfer,  there  is  a  price, 
motive,  inducement,  or  consideration  for  it,  existing  between  the  irn- 
medialc  jnirties  to  such  transfer^  who  are  thus  connected  together 
in  the  transaction. 

To  niake  tliis  matter  familiar,  for  it  should  be  so,  as  important 
rules  grow  out  of  it;  suppose  that  oiie  of  your  neighbors,  (S,)  has 
made  to  you  his  note  for  some  corn,  and  you  purchase  a  horse  of  A, 
and  transfer  and  indorse  the  note  of  S  to  A  for  the  horse.  A  takes 
the  note  and  transfers  and  indorses  it  to  J,  to  })ay  him  for  sui)press- 
ing  a  criminal  prosecution.  Now,  the  consideration  between  S  and 
you,  is  corn;  between  you  and  A,  a  horse;  and  between  A  and  J, 
a  criminal  prosecution,  and  void.  S  and  you  are  immediately  con- 
nected together  in  relation  to  the  corn,  and  you  and  A  are  immedi- 
ately connected  together  in  relation  to  the  horse,  and  A  and  J  are 
connected  in  relation  to  the  void  consideration. 

First. — When  the  action  is  between  two  parties  to  an  instrument, 
who  stand  in  immediate  coirnection  w^ith  each  other,  as  the  indorsee 
against  his  immediate  indorser,  the  consideration  which  passed  be- 
tween them  is  a  subject  of  defence;  and  the  want,  or  failure  in 
whole  or  in  part,  or  the  illegality  of  that  consideration,  or  a  set  oli' 
of  a  debt  due  from  the  plaintiff  to  the  defendant,  or  any  other  mat- 
ter of  just  defence,  niay  be  set  up  by  tlie  defendant.  Thus,  in  the 
case  above  stated,  if  J  should  sue  A  on  his  indorsement,  it  might 
be  shown  by  A  that  the  consideration  for  the  ti'unsfer  of  the  note 
was  to  supi)rcss  a  criminal  prosecution;  and  tluis  the  action  would 
be  defeated. 

So,  when  the  suit  is  by  the  drawer  against  the  acceptor,  or  by 
the  payee  against  the  drawer  of  a  bill  of  exchange,  or  by  the  payee 
against  the  maker  of  a  bond  or  note,  they  are  parties  who  stand  in 
uninediate  connection  with  each  other,  and  therefore,  the  same  rule 

(I)  Cliitty,  Jr.  on  Gills,  69. 

(1)  See  page  328. 

(2)  As  to  what  is  a  g'ood  consideration,  and  what  an  illegal  one,  see  pages  285 
to  290. 


^14.]  PROMISSORY    NOTKS BILLS BONDS,  411 

applies;  and  the  defendant  may  set  up  a  want  or  failure,  in  whole 
or  in  part,  or  an  illegal  consideration,  as  between  himself  and  tlie 
plaintiff,  or  a  set  olTof  a  debt  due  from  the  plaintiff  to  him,  or  other 
just  defence.(l) 

Second. — Where,  however,  the  suit  is  not  between  two  parties 
who  stand  in  immediate  connection  with  each  other,  but  the  action 
is  brought  by  a  tliird  person  or  holder  who  did  not  receive  the  in- 
strument from  the  defendant,  the  want  or  failure  of  the  considera- 
tion, in  whole  or  in  part,  cannot  be  set  up  as  a  defence  by  such  de- 
fendant, against  such  third  person  or  holder.  Therefore,  when  the 
suit  is  by  the  payee  against  the  acceptor,  or  by  an  indorsee  against 
the  acceptor,  or  drawer  of  a  bill;  or  the  suit  is  on  a  note  or  bond, 
by  an  indorsee  against  the  maker;  or  the  suit  is  by  an  indorsee  of  a 
hill,  bond,  or  note,  against  an  indorser  who  did  not  indorse  the  in- 
strument directly  to  the  plaintiff,  but  to  another  person;  in  all  these 
cases  the  defendant  is  not  permitted  to  show  that  he  became  a  party 
to  the  instnjment  without  consideration,  nor  can  he  be  permitted  to 
set  up  as  a  defence,  a  payment  to,  or  a  set  off  against,  other  parties 
to  the  instrument.  In  such  cases,  the  plaintiff,  in  general,  holds  the 
instrument  discha]-ged  from  all  the  equities  and  defence  which  ex- 
isted between  the  defendant  and  the  other  parties  to  the  instrument. 
To  this  rule,  however,  there  ore  various  exceptions,  which  will  be 
now  stated. 

EXCEPTION  FIRST. 

If  the  plaintiff  received  a  transfer  of  the  instrument  without  pay- 
ing any  value  for  it;™  or  for  an  illegal  consideration;  or  not  in  the 
usual  course  of  business;  or  as  a  security  for,"  or  in  payment  of  a 
debt,  which  existed  prior  to,  and  independent  of  the  transfer;*'  or 
to  indemnify  him  if  another  debt  should  not  be  paid;  or  with  notice 
of  the  defence;  or  after  the  instrument  became  due;^  in  every  such 
case,  the  plaintiff  takes  the  instrument  subject  to  all  the  objections, 
defence  and  equities,  if  any,  to  wdiich  the  instrument  was  liable  in 
the  hands  of  the  person  from  whom  he  received  it,  and  stands  in  his 
shoes.  But  if  the  person  in  whose  shoes  the  plaintiff  thus  stands, 
or  any  other  intermediate  party  between  him  and  the  defendant^{^) 

(m)  Chitty.  Jr.  on  Bills,  100,  i.  (o)  10  Wend.  85;  20  Johns.  Rep.  637. 

(n)  5  Johns.  Chy.  Rep.  54.  59;  Wright's  Rep.     (p)  Bay.  on  B.   (Bos.  ed.)  82;   WriglU'a  Eep. 
306;  8  Ohio  Rep.  .528.  306. 


(1)  Wlicn  there  is  a  partial  failure  of  the  consideration  of  a  note,  bond,  bill,  or 
other  contract,  it  does  not  defeat  the  action,  but  only  reduces  the  amount  of  the 
recovery. 

(2)  If  A  execute  his  note  to  B,  and  li  transfer  it  to  C,  and  C  to  D,  and  D  to  E, 
and  E  to  F,  and  so  throug-h  t)ie  alpliabet,  here  IJ  is  an  intermediate  party  l^etwecn 
A  and  C;  and  if  F  sue  A,  then  IJ,  C,  D,  and  E,  are  the  intermediate  parties  be- 
tween the  plaintiff  F  and  the  defendant  A.  To  illustrate  the  principle  stated  in 
the  text,  suppose  that  A  makes  liis  note  to  R  without  consideration:  B  assign.'i  it  to 
C,  who  is  a  honafulc  holder,  without  notice  of  the  want  of  consideration;  C  assigns 
it  to  J),  wlio  has  notice  of  tlie  want  of  consideration  Ijetwccn  A  and  B;  D  assigns 


412  PROMISSORY  NOTES BILLS BONPS.     [Pv/.  2,  Title  Z\^ 

received  the  instrument  in  the  regular  course  of  business,  before  it 
became  due,  and  paid  full  vahie  for  it,  without  any  knowledge  of 
the  defence,  objections,  or  ecjuities,  against  the  instrument,  then  the 
plaintill"  is.  in  general,  entitled  to  all  the  righls  and  protection  of  such 
micYmoxWwic  bona  Jidc  party,  and  stands  in  his  shocs.''(l)  There- 
fore, whore  a  bill  was  accej)ted  for  a  debt  contracted  on  a  sniug- 
glin""  transaction,  and  indorsed  for  a  valuable  consideration,  befoie 
it  was  due,  to  a  hoiK/Jhh;  lioidn^  who  indorsed  it  aflcr  it  become  dur^ 
to  the  plaintilf;  held,  tljat  as  the  indorsev  might  have  sustained  an 
action  on  it  against  the  acceptor,  so  mighf  the  indorsee,  and  that  it 
was  not  competent  to  the  defendant  to  set  up  the  illegality  of  the 
original  consideration  as  against  the  plairttifi^  though  it  would  be  a 
good  defence  to  an  action  by  the  payee. 

Whei'e  a  note  is  given  payable  on  demand,  and  one,  six,  or  any 
number  of  months  afterwards,  is  indorsed,  we  have  seen,  that  the 
indorsee,  in  order  to  render  the  indorser  liable,  must,  within  a  rea- 
sonable time  after  the  transfer,  make  demand  of  the  maker,  and 

(q)  Ros.  on  Ev.  167rBay.  on  B.  (Bos.  ed.)  349;  Cliitty,  Jr.,  on  Bills,  100. 


it  to  E,  who  also  lias  notice  of  the  want  of  consideration:  all  the  assignments  are 
made  before  the  note  is  due. 

Now  it  w  ill  be  observed  that  C  is  the  only  intermediate  party  between  E  and  A, 
who  was,  at  the  time  tiie  note  was  transferred,  ignorant  of  the  want  of  considera- 
tion between  A  and  B.  If  E  sues  A  on  the  note,  A  will  of  course  insist  upon  a 
right  to  set  up  the  want  of  consideration  between  him  and  B.  And  although  E 
stiinds  in  the  shoes  of  D,  from  whom  he  received  tiie  note,  yet  as  there  is  an  inter- 
mediate partj',  (C)  between  D  and  the  defendant  (A,)  who  was  a  honn  fide  holder 
of  the  note,  the  plaintiff  (E),  is  entitled  to  all  the  rights  and  protection  of  C;  and 
A  cainiot,  therefore,  set  up  the  want  of  consideration.  If  D  took  up  the  note  by 
paying  E,  then  D  might  sue  and  recover  from  A,  B,  or  C;  if  C  paid  D,  then  C 
may  sue  and  recover  from  A  and  B;  if  B  took  up  the  note  and  paid  C,  and  B  sued 
A,  the  \vant  of  consideration  for  the  note  as  between  A  and  B,  might  be  shown, 
and  would  defeat  the  action  of  B,  because  tlie  suit  would  then  be  between  two 
parties  to  the  note  immediately  connected  with  each  other. 

(1)  Tlie  i*ule  stated  in  the  text,  is  thus  laid  down  in  Chilly,  jr.,  on  Bills,  100,  i. 
*'It  seems  that  a  prior  party  cannot  set  up  as  a  defence,  that  he  received  no  value, 
and  that  the  plaintilT  holds  w'ithout  consideration,  if  an  inttrmtdidle  parly  took 
the  bill  or  note  bona  fide,  and  gave  value  for  it.  In  sucli  case  the  plaintiff  should, 
as  indorsee,  be  permitted  to  recover,  as  trustee  or  agent,  for  the  benefit  of  the  in- 
termediate indorsee  for  value,  who  might  liimsclf  have  sued  the  defendant  on  the 
instrument,  and  who  shall  be  assumed  to  have  indorsed  it  to  the  plaintifl",  for  the 
purpose  of  enabling  him  to  sue  thereon;  it  not  appearing  that  such  indorsee  for 
value  claims  the  instrument  adversely  to  the  plaintiff. 

"But  if  the  defendant  received  no  value,  and  the  party  to  whom  the  defendant 
made  or  indorsed  the  instrument,  transferred  it  to  the  plaintiff  without  considera- 
tion, and  the  latter  holds  it  under  such  circumstances  without  consideration,  he  in 
effect  stands  in  the  position  of  the  party  from  whom  he  received  the  instrument, 
and  cannot  sue  the  defendant  thereon;  although  at  the  time  of  the  transfer  to  the 
plaintiff  he  had  no  notice  that  the  defendant  signed  tlie  instrument  without  con- 
sideration. And  if,  under  such  a  state  of  facts,  the  plaintiff  gave  value  for  the 
bill  iov  part  only  of  the  amount  secured  thereby,  he  can  recover  no  more  than  the 
sum  really  due  to  him  upon  the  transaction  in  respect  to  which  he  received  the 
instrument.  But  when  the  defendant  has  received  full  value  for  the  instrument, 
the  plaintiff,  an  indorsee,  may  recover  the  full  amount;  although  he  holds  the  bill 
for  value  to  the  extent  of  part  only  of  the  sum  secured." 


§14.]  PROMISSORY  NOTES BILLS BONDS.  413 

give  the  indorser  notice  of  non-payment.(l)  If  this  is  not  done,  it 
will  not  all'ect  the  rights  of  the  holder  against  the  maker  of  the  note, 
but  will  discharge  the  indorser  from  all  liability.  These  liabilities 
of  the  maker  and  indorsers  are  here  mentioned,  that  they  may  not 
be  confounded  with  the  uncertain  rules  which  I  am  now  about  to 
state,  in  relation  to  notes  and  bonds  payable  on  demand. 

In  general,  if  a  note  or  bond  is  indorsed  and  transferred  after  it  is 
due,  the  maker  may  set  up  any  defence  against  the  indorsee  which 
would  be  a  good  defence  against  the  payee.  There  is  an  exception 
to  this  rule,  when  a  note  or  bond  payable  on  demand  is  indorsed  to 
a  bona  fide  holder  after  it  is  made,  who  pays  full  value  and  has  no 
notice  of  any  fraud,  or  defence  to  the  note. 

Although  such  a  note  or  bond  may  be  immediately  sued,  without 
demand,  yet  there  is  no  time  fixed  by  law  when  such  an  instrument, 
in  the  hands  of  an  indorsee,  is  considered  as  due,  so  as  to  let  in  the 
defence  against  him  Vv'hich  the  maker  has  against  a  recovery  Ly  the 
})ayee. 

Where  a  note  payable  on  demand  was  fraudulently,  and  without 
consideration,  taken  from  the  possession  of  the  maker  by  the  payee, 
and  seven  days  after  its  date,  by  him  indorsed  to  a  bona  fide  holder, 
who  paid  full  value  for  it  without  any  knowledge  of  the  fraud,  it 
was  holden  that  the  note  was  transferred  before  it  was  due,  and 
tlierefore  that  the  maker  was  liable  to  the  indorsee,  notwithstand- 
ing the  fraud.'' 

Where  a  note  payable  on  demand,  was  negotiated  two  months 
and  a  half  after  its  date,  it  was  holden  that  the  note  was  negotiated 
alter  it  was  due;  and  therefore  stood  on  the  same  ground  as  any 
other  note  indorsed  when  over  due.** 

A  note  payable  on  demand,  and  negotiated  eighteen  months  after 
it  was  given,  was  considered  as  a  note  out  of  time,  and  then  due,  so 
as  to'subject  the  indorsee  to  the  matter  of  defence  which  the  maker 
had  against  the  payee  at  the  time  it  was  indorsed.*^ 

Where  a  note  was  payable  on  demand,  with  interest,  it  was  hehj 
that  interest  being  mentioned  showed  that  the  parties  contemplated 
that  the  note  should  be  negotiated  for  some  time  after  its  execu- 
tion.*^ 

A  note  was  iliade  in  Eimland^  and  payable  on  demnnd,  and  was 
sued  in  the  State  of  New  York  by  the  indorsee,  within  a  year  from 
its  date.  The  court  said,  that  the  maker  was  not  entitled  in  that 
case  to  a  set  off  of  a  demand  against  the  payee,  without  proof  of  a 
fraudulent  assignment;  for  it  was  to  be  presumed  that  the  note  was 
assigned  soon  after  its  date.* 

It  will  be  i)crceived,  from  these  cases,  that  there  is  no  precise 
time  when  such  instruments  are  over  (ht.c^  so  as  to  let  in  that  (lefence 
•  »f  the  maker  against  the  indorsee,  which  he  has  against  a  recovery 
by  the  payee. 

(a)  6  Mass.  Rep.  42R;  1  JoImip.  Rop.  319.  (d)  10  Eiig.  C.  L.  Rep.  345. 

(1.)  7  Johns.  Rep.  70.  (c)  1  Johns.  Rep.  319. 

(c)  2  Caine's  Rep.  369. 

(1)  Sec  page  401. 


414  PROMISSORY  NOTES B1LL8 IX)Nr>R.     [Prt. '2^  Title.  31  ^ 

EXCEPTION    SECONa 

It  is  common  to  indorse,  or  draw  a  bill,  or  make  or  indorse  a 
note,  merely  for  the  accommodation  of  a  iViend,  and  as  a  substitute 
lor  the  loan  of  money.  For  instance,  A  wishes  to  raise  sixty  dol- 
lars, which  Ci  is  willing  to  lend  liim,  for  two  montlis,  if  he  will  pro- 
cure C  and  Vj  as  sureties.  A,  in  order  to  do  this,  gets  C  to  draw 
an  order  or  bill  of  exchange  on  E,  in  favor  of  himself,  (A,)  or  order, 
l)ayablc  in  two  montlis.  A,  takes  this  ortlcr  or  bill  to  E,  who  ac- 
cepts it,  and  then  A  indorses  and  delivers  the  bill  to  G,  who  loans 
the  money  upon  it,  knowing  that  there  is,  in  fact,  no  consideration 
given  by  A  to  C,  and  that  E,  who  accepts  the  bill,  owes  C  nothing. 
This  is  called  an  accommodation  bill.  The  acceptance  of  E  is 
called  an  accommodation  acceptance. 

But  suppose  A,  instead  of  thus  procuring  an  accommodation  biH, 
goes  to  C,  and  gets  him  to  make  out  and  sign  a  note  payal)lc  to  i\, 
or  order,  in  two  months,  for  sixty  dollars.  A  and  E  then  indorse 
the  note,  by  putting  their  names  on  the  back  of  it.  A  then  takes 
this  note  to  G,  who  lends  him  the  money  on  it,  knowing  that  there 
is,  in  fact,  no  consideration  ])etween  the  parties  for  the  execution 
of  the  note,  or  for  the  indorsements.  This  is  called  an  accommo- 
dation note,  and  E  is  an  accommodation  indorser.  A^ow,  as  be- 
tween all  the  parties,  except  A  and  G,  there  is  no  consideration; 
but  G  is  an  innocent  holder,  has  paid  the  value  of  the  instrument, 
and  none  of  the  parties  can  in  such  case  set  up  as  a  defence  against 
him,  that  there  was  no  consideration  between  them.'^ 

The  parties  who  sign  or  indorse  accommodation  notes,  bonds,  or 
bills,  for  the  use  and  benefit  of  the  principal  debtor,  are,  as  between 
themselves,  so  far  treated  as  co-sureties,  that  if  they- are  compelled 
to  pay  the  money,  they  can  only  recover  from  each  other  such  an 
amount  as  will  apportion  the  loss  equally  among  them:  the  princi- 
pal debtor  being  responsible  to  them  for  the  whole,  whether  he  ap- 
pear on  the  paper  as  indorser,  payee,  maker,  drawer,  or  drawee.^ 

Sec.  XV.  —  now  the  indorsers  &c.  may  be  discharged,  by  one  par- 
ty OIVING  time,  &C.,  to  another. 

It  will  have  been  perceived  already,  that  when  the  payee  of  a 
bill,  note,  or  bond,  indorses  it,  he  is  a  kind  of  surety  to  the  indorsee 
of  the  instrument;  being  liable  to  him  and  to  all  who  afterwards 
receive  the  bill,  in  case  he  has  notice  of  demand  and  non-pyament, 
and  may  ])e  sued  immediately  after  such  demand  and  notice.  The 
payee  has  also  a  right,  at  any  time  after  the  instrument  is  thus  dis- 
honored by  not  being  paid,  to  pay  it  himself,  and  immediately  to 
sue  the  drawer  or  maker;  and  if  it  is  accepted,  to  sue  the  acceptor. 

So,  where  the  instrument  is  indorsed  by  S  to  J,  and  is  dishonored 
by  non-payment,  S  may  at  any  time  pay  .1  and  take  up  the  instru- 

(n)  ?  Jobns.  Ecp.  361.  (I>)  1  Oliio  Rep.  420. 


615]  PROMISSORY   NOTES BILLS BONDS.  415 

inent,  and  then  immediately  sue  those  who  indorsed  it  before  fie  did; 
and.  lie  may  sue  the  maker,  if  it  be  a  note,  and  if  it  be  a  bill,  he  may 
sue  the  drawer,  and  also  the  drawee,  if  the  drawee  has  accepted  it. 
They,  too,  who  indorsed  it  beforeS  did,  have  all  tlie  same  right 
to  pay  and  take  up  the  instrument,  and  immediately  sue  the  prior 
parties. 

Now,  this  right,  of  thus  paying  and  taking  up  the  bill,  bond,  or 
note,  and  of  immediately  suing,  must  not  be  disturbed  by  any  ao-ree- 
ment  of  the  parties  to  tlie  instrument;  if  it  is,  it  discharges  the  lia- 
bility of  the  party  whose  right  is  thus  disturbed.  Suppose,  for  in- 
stance, that  the  holder  should,  upon  a  sufficient  consideration,  ao-ree 
with  the  acceptor  to  give  him  further  time  to  pay  the  bill;  this 
would  disturb  and  destroy  the  right  of  the  drawer,  payee,  and  in- 
dorsers,  from  imnlediately  suing  the  acceptor,  if  any  one  of  them 
wishes  to  pay  and  take  up  the  bill;  and  therefore,  all  of  them  would 
be  discharged  from  all  liability  on  the  bill.  Simply  delaying  to  sue 
the  acceptor  of  a  bill,  or  the  maker  of  a  note,  or  bond,  or  takino- 
other  security  from  him,  would  be  no  discharge  to  the  other  parties; 
because  it  would  not  aftect  their  right  to  pay  up  and  sue  immedi- 
ately. .  For  the  same  reason,  receiving  part  of  the  debt  from  the 
acceptor,  or  maker,  does  not  discharge  the  other  parties  to  the  in- 
strument. 

The  acceptor,  or  nuiker,  is  first  liable;  and  the  indorsci's  are  lia- 
ble in  the  order  in  which  they  stand  upon  and  became  parties  to 
the  instrument.  Now,  if,  for  a  sufficient  consideration,  the  la.st  hold- 
er or  indorsee  of  tlie  instrument,  should  give  time  to  his  immediate 
indorser,  this  v*'ould  not  affect  the  above  mentioned  rights  of  those 
])arties  and  indorsers  who  indorsed  the  bill  before  the  immediate 
indorser  of  the  holder;  for  the  immediate  indorser  of  the  holder  is 
liable  to  the  holder  only,  and  therefore  giving  time  to  him,  or  even 
releasing  him,*  will  not  discharge  the  prior  indorsers  and  prior  par- 
ties. But  suppose  the  instrument  was  indorsed  by  A  to  B,  and  by 
B  to  C,  and  by  C  to  D:  now  if  D  gave  B  time  to  pay,  this  would 
discharge  C,  for  B  was  liable  to  C  ©n  the  indorsement;  but  it  would 
not  discharge  A,  for  B  was  not  liable  to  A  on  the  indorsement,  and 
it  would  not  therefore  disturb,  or  in  any  way  ailect  the  right  of  A  to 
pay  the  bill  and  immediately  sue  all  who  are  liable  to  him. 

If  the  agreement  for  delay,  or  further  time,  is  not  founded  upon 
any  consideration,  it  is  void,  and  will  not  affect  the  rights,  nor  be 
binding  upon  any  one.  Thus:  in  the  instance  just  stated,  if  1)  pro- 
mised to  give  B  time,  and  B  gives  no  further  security,  nor  does  any 
act  as  an  inducement  or  consideration  for  this  promise,  it  is  a  nullity 
and  B  may  bo  immediately  sued  by  ]),  or  by  any  other  l)arty  to 
whom  he  is  liable,'' 

If  A,  a  party  or  indorser  of  the  instrument,  is  released  by  payin<>- 
a  part  in  discharge  of  the  whole  amount  of  his  liability,  this  also 
discharges  all  the  parties  to  whom  A  was  liable  on  the  instrument, 
as  it  deprives  them  of  the  right  of  resorting  to  him.'' 

(a)  3  Kent's  Com.  112.  (c)  Clillty  ou  nilla.  (Jf.  Y.  Ed  iS3J)  300. 

(h)  12  Wliou.  Kop.  554. 


4  1  6  PROiMlSSORY   NOTES HILLS UONHS.    [P/7.  2,  Tltld  3  1 , 

So,  if  tlic  holder  of  the  rnstruiacnt  take  u  new  instrument  of  A, 
for  the  amount  for  which  he  is  hable,  payable  at  a  future  time,  or 
in  iliscliariTC  of  his  hahihty,  this  will  discharge  all  to  whom  A  was 
liable  on  tnc  instrument.'^ 

A  i)erson  who  has  once  been  discharged,  by  laches,  from  his  lia- 
bility on  a  bill,  is  always  discharged. 

It*  has  been  lield  that  an  accommodation  acceptor  was  discharged 
by  the  holder  giving  time  to  the  drawer,  with  knowledge  that  it  was 
an  accommodation  bill.     But  that  decisioniias  been  overruled.® 

The  statute  in  relation  to  bail  and  sureties,^  provides,  that  where 
one  of  the  parties  to  a  bond,  bill,  or  note,  is  surety  for  another,  no- 
tice may  be  given  to  the  holder  of  the  instrument,  in  writing,  to  sue 
the  ])rincipal  debtor.  So,  where  a  note  or  bill  is  indorsed  for  the 
accommodation  of  one  of  the  parties,  and  tiiis  fact  was  known  to 
the  holder  when  the  instrument  wnis  transferred,  notice  could  be 
given  him  under  the  statute.''  If,  after  notice  in  writing  has  been 
given,  the  holder  neglects  for  an  unreasonable  time  to  sue,  the  sure- 
ty giving  the  notice  will  be  discharged  from  all  liability.(l)  The 
statute,  however,  docs  not,  in  gcnend,  apply  to  common  indorsers, 
as  they  are  all  liable  to  be  separately  sued  by  the  holder  as  princi- 
pals, and  arc  not  considered  as  sureties. 


Sec.  XYl.  —  OF  the  uights  and  obligations  of  parties  to  a  lost, 

STOLEN,  OR  FORGED  NOTE,   BOND,  OR  BILL. 

And  first,  what  is  a  forgery. 

Any  material  alteration  made  in  a  bill  or  note,  such  as  in  date, 
place  of  payment,  sum,  time  Avhen  payable,  or  in  the  statement  oi 
the  consideration  after  it  has  been  completed,  without  the  co-nsent  oi 
the  parties  thereto,  W'ill  make  it  void,  for  it  ceases  to  be  the  same 
instrument. 

But  if  the  alteration  be  immaterial  it  will  not  aflect  the  valitlity 
of  the  instrument,  even  as  against  a  party  not  consenting. 

To  sign  the  name  of  a  fictitious  or  non-existing  person  is  a  for- 
gery. It  is  also  a  forgery  to  sign  a  man's  own  name  with  intention 
tliat  tlie  signature  should  pass  for  the  signature  of  another  person 
of  the  same  name. 

An  alteration  made  to  correct  a  mistake  will  not  vitiate  an  instru- 
ment. Where  a  bill  was  dated  by  mistake,  in  1822,  instead  of 
1823,  and  the  agent  of  the  drawer,  and  acceptor,  without  their 
knowledge  or  consent,  corrected  the  mistake:  held  not  to  render 

(ci)  2  Kent's  Com.  112.  (g)  Stat.  877. 

(e)  1  Eng.  C.  L.  Rep.  72.  (Ii)  1  Oliio  Kep.  420. 

[1]  II  seems,  that  where  the  principal  aiul  surety  have  expres&Iij  bound  tliem- 
sclvcs  in  a  bond,  or  sealed  note,  as  principals,  they  cannot  have  the  benefit  of  this 
notice,  under  the  statute;  but  arc,  .so  far  as  regards  tlie  payee  and  indorsees  of  the 
bond  or  sealed  note,  to  be  treated  as  principals.  7  Ohio  Rep.  Hut  when  the  in- 
strument is  not  under  se:d,  the  surety,  in  such  case,  may  siiow  that  he  is  surety, 
and  claim  the  benefit  of  the  statute. 


§16.]  PROMISSORY  NOTES BILLS BONDS.  417 

the  bill  void.  We  have  ah-eady  seen  that  if  a  blank  be  left  in  a  bill 
for  the  name  of  the  payee,  a  bona  Jide  holder  may  insert  his  own 
name  as  payee. 

A  bill,  bond,  note,  or  contract  vitiated  by  alteration,  is  inadmis- 
sible in  evidence,  for  any  available  purpose  in  favor  of  the  holder. 
It  is  void  as  a  security,  and  the  alteration  takes  away  the  remedy 
against  every  party  between  whom  and  the  holder  there  is  no  pri- 
vity; bat  it  does  not  operate  as  an  extinguishment  of  the  debt  or 
consideration,  which  may  be  recovered  if  proved  by  other  evidence, 
unless  the  alteration  be  made  by  the  creditor,  and  the  rights  of  the 
debtor  might  be  thereby  prejudiced.* 

Where  the  buyer  of  goods  paid  for  them  by  his  own  acceptance, 
and  the  seller  altered  the  date  of  the  bill,  whereby  it  was  vitiated; 
held  that  he  did  not  thereby  preclude  himself  from  suing  the  accep- 
tor for  the  original  debt,  and  that  he  might  recover  for  goods  sold.*" 

But  where  the  vendee  of  goods  paid  for  them  by  a  bill  of  ex- 
change, which  he  drew  on  a  third  person,  and  the  vendor  altered 
the  tmie  of  payment  whereby  the  bill  was  vitiated;  held  that  by  so 
doing  he  made  the  bill  his  own  and  caused  it  to  operate  as  a  sat- 
isfaction of  the  original  debt,  and  consequently,  that  he  could  not 
recover  the  price  of  the  goods  from  the  vendee.  Lord  Tenterden, 
in  delivering  the  judgment  of  the  court,  said,  ^^It  is  perfectly  clear 
that  a  bill  of  exchange  will  operate  as  a  satisfaction  of  a  preceding 
debt,  if  the  holder  make  it  his  own  by  laches,  as  by  not  presenting 
it  for  payment  when  due.  Here  the  plaintiti',  by  altering  the  bill  in 
a  material  part,  made  it  his  own,  as  against  the  defendant,  and  caus- 
ed it  to  operate  as  a  satisfaction  of  the  debt  for  which  it  was  origi- 
nally given.  Allowing  the  plaintiff  to  recover  the  value  of  the 
goods  in  this  action,  and  the  defendant  to  bring  a  cross  action  for 
the  special  damage  sustained  by  reason  of  the  destruction  of  the 
bill,  would  lead  to  a  multiplicity  of  actions,  which  is  against  the 
policy  of  the  law.'"^ 

Where  it  is  shown  tiiat  the  bill  has  been  lost,  or  fraudulently  or 
feloniously  obtained  from  the  rightful  owner,  the  holder  who  sues 
must  prove  that  he  gave  a  valuable  consideration  for  it.*^ 

If  a  party  exercising  due  caution,  has  by  mistake  paid  money  on 
a  forged  instrument,  and  has  been  guilty  of  no  laches  whereby  the 
rights  of  a  third  party  have  been  affected,  lie  may  recover  back  the 
sum  so  paid  in  an  action  for  money  had  and  received.^ 

It  has  already  been  stated,  that  where  a  note,  bond,  or  bill,  is 
payable  to  A  or  bearci\  it  can  be  transferred  by  mere  delivery;  and 
where  it  is  payable  to  A  or  order^  or  assigns,  and  is  indorsed  in 
blank,  any  subsequent  holder  may  also  transfer  it  by  mere  delivery. 
It  will  therefore  be  peiceived,  that  if  an  instrument  payable  to 
bearer,  or  indorsed  in  blank,  is  lost  or  stolen,  it  will  be  easy  for  the 
thief  or  finrler  to  transfer  it,  by  mere  delivery,  to  an  innocent  hold- 
er.    Such  innocent  liokicr,  if  he  received  theinstrument  in  the  usual 

(a)  22  Ei.R.  C.  L.  Rep.  323.  (<l)  1  Leigh's  N.  P.  400. 

(b)  29  Id.  169.  (e)  1  Eng.  C.  L.  Rep.  166.  170. 

(c)  23  Id.  155. 

53 


UG  PUOMISSORY   NOTES RILLS BONUS.    [/-*?'/,  2,  Tz^/c  31, 

course  of  business,  and  paid  value  r(,>r  it,  without  notice  of  the  cir- 
cumstance, and  not  l)eing  gviilty  of  gross  neglect,  may  recover 
against  all  the  parties  to  it,  the  same  as  if  lie  came  to  it  by  the  liands 
of  the  owner  oi'  it.^ 

If  the  instrument  is  pnyable  to  A  or  order,  or  assigns,  and  is  not 
indorsed  by  the  payee,  and  lie  loses  it,  or  it  is  stolen  from  him,  and 
the  thief,  or  finder,  forges  an  indorsement  in  blank,  in  the  name  of 
A,  the  payee,  and  then  transfers  it  by  delivery  to  an  innocent  hold- 
er, Avho  pays  full  value  for  it,  and  takes  it  under  the  belief  that  the 
•  signature  of  A  is  genuine,  the  holder  cannot  recover  upon  it;  for 
he  should  have  ascertained,  before  he  took  it,  whether  the  signature 
of  A  was  a  forgery,  or  not:  and  if  the  draw'ee,  acceptor,  or  maker, 
pay  to  such  holder  the  fimotTnt  of  such  bill,  bond,  or  note,  he  must 
pay  again  to  A,  who  does  not  lose  his  remedy  on  the  insti'umentJ' 
But  if  such  innocent  holder  indorsed  the  instrument  to  C,  the  holder 
would  be  jiablc  to  C,  on  his  indorsement;  though  in  every  other  re- 
spect, C  would  stand  in  the  shoes  of  the  indorser.  The  snme  rule 
is  applicable  where  the  instrument  is  not  indoi'sed  in  blank,  but  is 
indorsed  to  a  person,  or  order,  or  assigns';  for  no  one  but  the  person 
to  whom  the  instrument  is  thus  indorsed,  can  transfer  it  by  the  act  - 
of  indorsing;  and  therefore  the  thief,  or  finder,  must  forge  an  indorse- 
ment in  order  to  transfer  it,  and  the  holder  then  takes  it  at'his  peril. 
If  a  bill  is  forged  in  the  name  of  C  on  E,  and  E  (iccepts  it^  he  will 
be  bound  to  pay  it  to  any  innocent  holder  who  has  paid  value  for  it, 
and  received  it  in  the  regular  course  of  business.' 

Those  who  indorse  a  forged  instrument,  are  not  only  liable  on 
their  indorsement  the  same  as  if  the  instrument  were  genuine,  but 
there  is  always,  in  law,  an  implied  warranty  by  any  one  who  in- 
dorses or  delivers  an  instrument,  that  the  same  is  not  forged,  even 
where  it  is  transferred  '•'•without  recourse,"  or  ''at  the  risk"  of  the 
indorsee.''  In  all  cases  where  the  instrument  is  so  payable,  or  so 
indorsed,  that  the  finder,  or  thief,  can  transfer  it  without  forgery, 
and  by  mere  delivery,  the  owner  of  the  instrument  cannot,  if  it  be 
lost  or  stolen,  sue  the  parties  to  it;  for  they  may  be  liable  to  some 
innocent  holder:'  and  if  such  instrument,  so  payable,  or  so  indors- 
ed, be  paid  by  the  acceptor,  or  maker,  when  it  becomes  due,  even 
to  one  who  holds  the  instrument  by  fraud,  theft,  or  finding,  such 
payment  is  good.  If,  however,  the  acceptor  or  maker  had  notice 
of  such  fi'aud,  theft,  or  loss,""  or  was  guilty  under  the  circumstances 
of  gross  neglect  in  paying  the  instrument,  he  will  still  be  liable  to 
the  true  owner." 

A  plaintiO'may  be  a  witness  to  prove  the  loss  or  destruction  of  a 
note,  bond,  or  bill,  but  nothing  more;  and  where  a  suit  is  brought 
upon  a  note,  bond,  or  bill,  that" is  stolen  or  lost,  it  will  be  presumed, 
until  the  contrary  appear,  that  it  was  not  negotiated  before  it  w^as 

(g)  ChittyonBills,  149;27Eng.C.L.  Rcp.234.  (k)  5  Jolins.  Rep.  240. 

276.  overrules  the  case  in  4  B.  and  0. 330.  (1)  2  Campb.  Rep.  211;  14  Eng.  C.  L.  Rep.  20. 

(h)  3  T.  R.  127.  (m)  Cliitty  on  Bills,  148. 

(i)  4  M.  and  S.  15;  4  Dal.  235;  1  T.  R.  655.  (n)  27  Eng.  C.  L.  Rep.  234. 


§16,17.]  PROMISSORY    NOTES BILLS BONDS.  419 

stolen  or  lost;  but  it  is  for  the  defeiiTiant  to  sliow  the  fact,  in  his 
defence." 

An  action  can  he  maintained  upon  a  note-,  bill  or  bond,  that  is 
destroyed;  for,  in  such  case,  it  could  not  pass  into  the  hands  of  an 
innocent  holder. 

Where  a  bank  bill  has  been  divided  'for  transmission  by  mail, 
and  one  of  the  parts  is  lost,  the  holder  may  recover  on  presenting 
the  other  part,  as  the  parts  of  a  divided  bill  are  not  separately  ne- 
gotiable.P 

Sec.  XVII. —  of  the  rights  anm  obligations  of  parties  to  a  bank 

CHECK. 

A  check  is  a  written  order  or  reciuest  addressed  to  a  bank,  or  its 
cashier,  and  drawn  by  a  person  having  money  in  the  bank,  request- 
ing the  bank,  or  its  cashier,  to  pay  on  demand,  that  is,  on  present- 
ment, to  a  person  therein  named,  or  to  bearer,  a  named  sum  of 
money. 

Tlie  person  who  draws  the  check  is  called  the  drawer;  the  per- 
son upon  wdiom  it  is  drawn,  (the  bank,)  is  called  the  drawee;  and 
the  person  to  whom  the  money  is  directed  to  be  paid,  is  called  the 
payee. 

In  order  to  render  the  drawer  of  the  check  liable  to  the  holder, 
it  will  be  sufficient,  if  a  demand  upon  the  bank  has  been  made,  at 
any  time  before  suit  brought  thereon  against  the  drawer,  unless  it 
appear  that  the  bank  has  fjuled,  or  the  drawer  has,  in  some  other 
manner,  sustained  injury  by  the  delay. i  In  general,  however,  it  is 
safest  for  the  holder,  whether  payee,  indorsee,  or  one  who  has  re- 
ceived the  check  by  mere  delivery  Vvithout  indorsement,  to  imme- 
diately present  the  check  for  payment,  during  the  usual  hours  of 
banking  business;  and  if  not  paid,  to  give  immediate  notice  to  the 
drawer  and  other  parties,  to  whom  the  holder  looks  for  payment. 

When  a  check  is  drawn  without  funds  in  the  bank,  and  without 
any  reasonable  expectation  that  the  bank  would  pay  the  check,  the 
drawer  will  not  be  discharged  by  the  holder's  not  presenting  it  in 
due  time,  or  not  giving  notice  of  its  non-payment.''  But  the  hold- 
er should,  in  such  case,  give  immediate  notice  to  the  person  from 
whom  he  received  the  check,  of  its  non-payment,  in  order  to  render 
him  liable. 

When  the  payee  of  a  check  has  indorsed  it,  or  delivered  it  w^ith- 
out  indorsement  to  a  third  person,  for  value,  he  thereby  tacitly  en- 
gages that  the  bank  will  pay  it  when  presented,  and  that,  if  the 
bank  refuse  to  pay,  he  will,  upon'  notice  thereof,  pay  it  himself, 

A  person  who  transfers  a  check  by  mere  delivery,  without  in- 
dorsement, may,  upon  the  non-payment  of  the  check,  be  sued  by 
the  person  to  whom  he  delivers  it,  for  the  dchi  on  account  of  which 
the  check  was  received. 

(o)  1  JolDiB.  Itcp.  10-1.  00  .3  JcliiiR.  Ca.  5.  2i9;  7  Kng.  C.  L.  Rep.  402; 

(p)  4  W.iHli.  C.  C.  Rep.  253;  4  Rand.  Rep.  186.  3  Kent's  Com.  fiS. 

(r)  ft  Ilar.  ^  JoIhih.  ;i81;  1  Hall's  N.  Y.  R.  70. 


420  I'ROMISSORV  NOTES BH.l.S BONUS.    [Pr/.  2,  TifkSi, 

It  is  indispensublo  in  order  to  render  ihe  drawer,  indorser,  or 
transferrer  witliout  indorsement,  liable,  that  the  instrument  should 
be  presented  to  the  bank  ibr  payment. 

The  presentment  ibr  payment  must  be  made  during  the  usual 
Jiours  ol  business. 

A  bank  is  bound  to  pay  a  check  drawn  by  a  person  who  has  suf- 
ficient funds  in  its  hands  applicable  to  that  purpose;  and  will  be 
liable  to  a  special  action  upon  the  case,  at  the  suit  of  the  drawer, 
for  neglect  or  refusal.'  But  if  a  bank  refuse  to  pay  a  check,  the 
holder  cannot  sue  the  bank,  but  his  remedy  is  against  the  drawer^ 
transferrer,  and  indorsers. 

Bank  checks,  like  bank  bills,  when  payable  to  a  person  or  bearer, 
or  to  bearer  only,  are  legally  transferable  by  mere  delivery;  and 
they  cannot  be  followed  by  a  party  who  has  lost,  or  been  cheated, 
or  robbed  of  them,  into  the  hands  of  a  person  who  has  subsequent- 
ly taken  them  bonajide^  for  value — under  circumstances  not  likely 
or  calculated  to  create  such  suspicions  as  would  amount  to  gross 
negligence,' 

If  a  bank  pay  a  forged  check,  the  bank,  and  not  the  person  whose 
signature  is  forged,  has  to  sustain  the  loss,  though  the  forgery  was 
so  well  executed  that  it  was  not  discoverable  on  ordinary  inspec- 
tion. 

If,  however,  a  bank  pay  to  A,  the  innocent  holder  of  a  forged 
check,  its  amount,  the  bank  may  recover  it  back  from  A,  as  money 
paid  to  him  by  mistake;  provided  the  bank  give  A  notice  on  the 
day  it  is  paid  that  the  check  is  a  forger}^^  If  the  bank  discover 
the  forgery  on  the  following  day,  so  that  the  time  is  passed  for  A 
to  give  notice  in  due  time  to  his  indorser,  or  transferrer,  of  the  non- 
payment of  the  check,(l)  the  bank  cannot  recover  back  the  money 
from  A.^ 

When  a  check,  drawn  upon  a  bank  for  a  sum  of  money,  describ- 
ed in  the  body  of  the  check  in  words  and  figures,  was  afterwards 
altered  by  the  holder,  who  substituted  a  larger  sum  for  that  men- 
tioned in  the  check,  but  in  such  a  manner  that  no  person  in  the 
ordinary  course  of  business  could  observe  it,  and  the  bank  paid  to 
the  holder  this  larger  sum;  it  was  holden  that  the  bank  could  not 
charge  the  drawer  for  any  thing  beyond  the  sum  for  which  the 
check  was  originally  drawn."' 

When,  however,  a  check  is  so  carelessly  drawn,  that  an  altera- 
tion may  be  easily  made,  the  loss  arising  from  the  alteration  must 
be  borne  by  the  drawer.  Thus:  a  customer  of  a  bank  delivered 
to  his  W'ife  certain  printed  checks  signed  by  himself,  but  with  blanks 
for  the  sums,  requesting  his  wife  to  fill  the  blanks  up  according  to 
the  exigency  of  his  business.     She  caused  one  to  be  filled  up  with 

(8)  20  Eng.  C.  L.  Rep.  412.  (v)  17  Id.  517. 

(t)  27  Id.  234. 276.  (w)  12  Id.  368. 


(1)  It  may  admit  of  doubt,  whether  in  this  country,  a  delay  to  give  notice  of 
the  non-payment  of  a  check  for  a  single  day  would  discharge  the  indorser,  or 
transferrer  of  a  check.     See  3  Kent's  Com.  88. 


§17.]  PROMISSORY  NOTES RILLS BONDS.  421 

the  wordsjifty  dollars^  the  fifty  being  commenced  with  a  small  let- 
ter, and  placed  in  the  middle  of  the  blank  line:  the  figures  50  were 
also  placed  at  a  considerable  distance  from  the  printed  $':  in  this 
state  she  delivered  the  check  to  her  husband's  clerk  to  receive  the 
amount;  whereupon  he  inserted  at  the  beginning  of  the  line  in 
which  the  word  Jifti/  was  written,  the  words  t/iree  hundred  and.,  and 
the  figure  3  between  the  ^  and  the  50.  The  bank  having  paid  the 
^350,  it  was  holden  that  the  loss  must  fall  on  the  drawer.* 

If  a  bank,  under  circumstances  which  should  have  excited  suspi- 
cion, pay  a  check  which  was  drawn  by  a  customer,  but  afterwards 
torn  up  or  canceled  by  him,  and  not  meant  to  be  sued,  the  loss 
must  fall  on  the  bank.'' 

(a)  13  Eng.  C.  L.  Rep.  420.  (b)  2  Camp.  485. 


TITLK  XX  XII. 


SALES. 

SECTION    I.         WHEN  A  SALE  IS  COMPLETE. 

II.  OF  THE  IM.ACE  OF  DEMAND  AND  DELIVERY. 

III.  OF  THE  MODE,  AND  TIME  OF  DAY,  IN  WlllCIf  DEMAND  AND  TEN- 

DER SHOULD  BF,  MADE. 

IV.  OF    THE  TERKOliMANCE    OF    A    CONTRACT    OF    SALE,    AND    THE 

EFFECT  OF  A  DELIVERY  OF  PART  OF  THE  PROPERTY. 

V.  OF  THE  EFFECT  OF  A  TENDER  UPON  THE  RIGHTS  OF  THE  BUY- 

ER AND  SELLER,   AND  OF  THE   DAMAGES  IN  SUCH  CASE,  AND 
WHEN  NO  TENDER  IS  MADE. 

VI.  OF  THE  REMEDY  FOR  DEFECTS  IN  THE  aUALITY,   TITLE,    &C., 

OF  PROPERTY  SOLD;    AND  HEREIN, 

(^4)  Of  the  fraudulent  concealment^  oi-  yjiisrejn'eseyiiatioyi 
of  the  (jua.lity  of  things  sold. 

(B)  Of  the  different  kinds  of  warranty. 

(C)  Of  implied  loarranty  of  title  and  quality. 
{D)  Of  express  warranty  of  quadity. 


Sec.  I. WHEN   A  SALE  IS  COMPLETE. 


In  general,  a  sale  of  goods  and  chattels  is  the  transfer  of  the 
ownership  from  one  person  to  another,  in  consideration  of  some 
price  paid,  or  agreed  to  he  paid. 

It  is  important  to  know  at  what  period  in  a  contract  of  sale,  the 
ownership  of  the  property  passes  from  the  seller  to  the  buyer;  for 
from  that  time,  (though  the  property  be  not  delivered,)  it  is  subject 
to  an  execution  against  the  buyer:  he  rnay  maintain  an  action  for 
its  conversion;  and  if  destroyed  by  accident,  without  the  gross  neg- 
lect of  the  seller,  the  buyer  must,  notwitiistantUng,  pay  the  price 
and  bear  the  loss. 

When  the  terms  of  a  sale  are  agreed  uj)on,  and  the  bargain  is 
struck,  and  every  thing  which  the  seller  has  to  do  with  the  goods  is 
complete,  the  contract  of  sale  becomes,  in  general,  perfect,  and  the 
property  and  risk  of  accident  to  the  goods  vest  in  the  buyer,  with- 


[Prt.  2,  Tit.  33,  §1.]  SALES.  423 

out  actual  payment,  or  delivery;  provided  immediate  payment,  or 
delivery,  be  tendered.  Thus:  II' I  have  property,  and  state  to  you 
my  price,  and  you  say  you  \vill  give  it,  the  bargain  is  complete,  and 
you  are  bound,  if  I  immediately  tender  to  you  the  article;  and  I  am 
bound,  if  you  immediately  tender  to  me  the  price:  But  if,  in  such 
case,  neither  the  money  be  paid  or  tendered,  nor  the  goods  deliv- 
ered or  tendered,  nor  any  agreement  be  entered  into  about  the 
payment  or  delivery,  it  may  be  presumed  that  the  bargain  was 
abandoned  by  both  parties,  and  neither  will  be  bound  by  the  con- 
tract. For  where  nothing  is  said  at  the  time  of  a  sale,  as  to  the 
time  of  payment  and  delivery,  the  buyer  is  not  entitled  to  the  goods, 
nor  can  he  sue  for  them  without  immediate  payment  or  tender  of 
payment;  and  the  seller  cannot  sue  for  the  price,  without  immedi- 
ate delivery,  or  tender  thereof.  In  such  case,  the  party  who  oflers 
to  perform  may  sue  on  the  contract,  or  consider  it  dissolved  and 
abandoned.^ 

But  if  goods  are  sold  upon  credit,  and  nothing  is  agreed  upon  as 
to  the  time  of  delivering  the  goods,  the  buyer  is  immediately  enti- 
tled to  the  possession  and  the  right  of  possession,  and  the  ownership 
vests  at  once  in  him.^ 

If  A,  by  letter,  oflers  to  sell  B  certain  specific  goods  at  a  certain 
price,  the  contract  is  complete  the  moment  that  B  luriles  a  letter  to 
A  accepting  the  terms;  whether  the  letter  reaches  A  one  or  more 
days  afterwards,  or  not.*^ 

Where  the  contract  is  complete,  as  in  the  case  of  an  actual  sale, 
it  is  binding,  though  it  be  agreed  that  one  party  shall  have  the  op- 
tion of  putting  an  end  to  it,  or  determining  it.*^ 

The  goods  sold  must  be  ascertained,  designated,  and  separated 
from  the  stock  or  quantity  with  which  they  are  mixed,  before  tlie 
ownership  can  pass  to  the  buyer.  It  is  a  fundamental  principle, 
pervading  every  where  the  doctrine  of  sales  of  property,  that  if  the 
goods  be  sold  by  number,  weight,  or  measure,  the  ownership  does 
not  pass  from  tiie  seller  to  the  buyer  until  they  are  weighed,'^  count- 
ed, divided,^  or  measured.''  So,  if  any  act  remain  to  be  done  by 
the  seller  about  the  goods,  to  complete  the  sale,  —  as,  if  he  is  to 
mend  or  improve  them,  or  ascertain  their  quality,  or  deliver  them 
on  another  day,  or  at  another  i)lace;  in  general,  the  ow'nership,  un- 
til this  be  done,  will  continue  in  the  seller.'  But  where  there  is 
an  immediate  sale,  and  nothing  remains  to  be  done  by  the  seller, 
as  between  him  and  the  buyer,  (as,  if  a  stack  of  hay  be  sold,  which 

(a)  Dyer,  30  (:i):  1  FT.  lilark.  Rep.  363;  3  Cow.  not  liallc  lo  an  anion,  lor  not  ilclivorins  ilic 
Rep.  85;  5  Johns.  Rep.  410,  411.  pooils;  lor  H,  not  hciiiK  hound  liy  tlic  ori|{inal 

(b)  10  Eng.  C.  L.  Rep.  480;  2  Kent's  Coin,  contract,  thore  was  no  consideration  to  bind  A. 
492.496.  (d)  16  East,  45. 

(c)  I  Barn,  and  .Md.  681;  6  Woiid.  103.  See  1  (c)  2  Maule  and  Selw.  397;  13  East,  522;  5 
Pick.  Rep.  278.  283.     Tlie  ra?c  in  3  T.  R    C53,     Taunt.  617. 

was  where  A,  liavins;  proposed  to  sell  goods  lo  15,         (g)  2  Canipli.  240;  6  East,  614;  2  Maulo  and 

gave  liim  a  certain  lime,  at  liis  rcciuest,  to  deter-  Selw.  397;  7  Ohio  Ucp.  I'rt.  2,  127. 

mine  whetlier  lie  would   buy  thcin,  or  not.      B,         (li)  12  Enjr.  C.  L.  Rep.  380. 

within  tlie  time,  deierniincd  to  huy  tlieni,and  Rave         (i)  7  Cow.  Rep.  85;  7  Wend.  Rep.  404. 

notice  llicrcof  to  A.     It  was  l:oldcn  that  A  was 


424  SALES.  [Frt.Q,TiflcS^2, 

the  buyer  himself  is  uftervvards  to  take  away.)  the  property  in  the 
thing  sold  vests  in  the  buyer  at  tlie  time  of  the  sale.*(l) 

If  you  order  a  [)erson  to  send  you  a  certain  (juantity  of  goods, 
on  a  certain  crecUt,  and  he  send  you  a  less  (juantity,  or  a  ditrcrent 
kind,  or  send  the  goods  and  reijuirc  a  shorter  credit,  you  may  re- 
fuse to  receive  the  goods,  as  the  seller  has  not  acceded  to  your 
terms;''  but  if  you  accept  the  goods,  they  are  then  yours,  and  you 
are  liable  to  pay  for  them  according  to  the  terms  of  the  seller.*^ 

If  you  sell  me  property,  and  it  turns  out  that  at  the  time  of  tlie 
sale  it  was  dead,  burnt,  or  otherwise  destroyed,  though  the  fact  was 
unknown  to  both  of  us,  the  contract  is  not  binding,  but  necessarily 
void.  But  this  rule  is  applicable  only  w  here  there  is  a  sale  of  a 
specific  article;  for  if  you  agree  to  sell  me  fifty  bushels  of  corn,  with- 
out any  agreement  as  to  the  specific  corn  wliich  is  to  be  delivered, 
you  must  fulfil  your  contract,  though  the  corn  which  you  intended 
for  me  be  destroyed. 

Where  goods  are  ordered  to  be  made,  no  property,  in  general, 
passes  to  the  person  for  whom  they  are  made,  until  they  are  com- 
pleted and  delivered,  even  though  he  has  paid  for  them  in  ad- 
vance.'^ 

But  if  the  person  who  orders  an  article  to  be  made,  find  a  part 
of  the  materials,  and  the  mechanic  a  part;  then  the  relative  value 
of  the  materials  found,  will  determine  who  is  the  owner  when  the 

(n)   13  Ens.  C.   L.   Ucp.    199;   11    Johns.  Rep.  (c)  3  Johns    Kep.  534- 

283;  1  Taunt.  457;  13  East,  522;  12  Id.  (d;   10  Enj;.  C.  L.  Rep.  13G;   1  Taunt.  SIR;  14 
614;  and  see  2  Mau.  and  Sel.  404,  where  Euj.  0.  L.  Rep.  9;  but  see  7  Eng.  C.  L. 

the  case  in  12  East  is  re\'iewed.  Rep.  310. 

(b)  7  Johns.  Rep.  470. 

(1)  Where  goods  are  sold  to  be  paid  for  in  30  days,  and  if  not  carried  away  at 
the  end  of  th.-it  time  warehouse  rent  to  be  paid  for  them,  it  was  held  that  the  pro- 
perty in  llie  goods  vested  absolutely  in  the  purchaser  from  the  moment  of  the 
sale.  1  Camp.  413.  4.52.  Where  turpentine,  in  casks,  was  sold  by  auction,  at  so 
much  per  cwf.  and  the  casks  were  to  be  taken  at  a  certain  marked  quantity,  ex- 
cept tlie  two  last  lots,  out  of  wliich  tlie  seller  was  to  fill  up  the  rest  before  they 
were  delivered  to  the  purchasers,  the  buyers  to  liave  an  option  to  let  the  casks 
remain  in  tlie  warehouse  of  the  sellers  witliout  paying  rent  for  30  days;  and  the 
sellers  had  all  the  casks  except  ten  filled  up,  but  left  the  bungs  out  in  order  to  en- 
able the  custom-house  officer  to  gauge  them;  but  before  the  rest  could  be  filled 
up,  a  fire  consumed  the  whole  in  the  warehouse,  within  the  30  days;  it  was  lield 
by  the  court,  that  every  tiling  having  been  done  by  the  sellers  which  lay  upon 
them  to  perform  in  order  to  put  the  goods  in  a  deliverable  state,  they  remained  at 
the  risk  of  the  buyers, — excepting  the  ten  casks,  tlie  property  of  which,  they  not 
having  been  filled  up  according  to  the  contract,  did  not  pass  to  the  buyers.  1 1 
East  210. 

Where  several  bales  of  skins,  stated  in  the  contract  to  contain  five  dozen  in 
each  bale,  were  sold  at  a  certain  sum  per  dozen,  and  it  was  the  duty  of  the  seller 
to  count  over  the  skins,  to  see  how  many  each  bale  actually  contained,  but  before 
any  enumeration  took  place  the  whole  were  consumed  by  fire;  it  was  holden  that 
an  action  could  not  be  maintained  against  the  purchaser  for  the  value  of  the  skins, 
and  that  the  loss  fell  entirely  upon  the  seller.     2  Camp.  240.  242,  no/e. 


§1,2.]  SALES.  425 

?"naterials  are  united.*  For  instance,  if  you  furnish  a  tailor  with 
cloth,  and  order  a  coat  to  be  made,  and  he  use  his  own  thread  to 
make  the  coat;  here  the  materials  you  furnished  are  the  j^rincipal 
and  his  merely  secondary  to  yours;  and  consequently,  the  thread 
became  yours  the  moment  it  was  united  to  the  coat.  But  if  you 
order  a  tailor  to  make  you  a  coat,  he  finding  the  cloth  and  you  the 
thread,  the  cloth  and  thread  are  both  his  the  moment  they  are 
worked  up,  and  the  ownership  does  not  pass  to  you  until  completed 
and  delivered.  The  ownership,  in  such  cases,  turns  on  the  question, 
whether  the  mechanic,  or  the  person  who  ordered  the  article  to  be 
made,  furnished  the  principal  materials  in  point  of  value. 

An  agreement  between  the  buyer  and  seller,  at  the  time  of  a  sale, 
that  the  latter  may  resume  possession  if  the  price  be  not  duly  paid, 
is  a  personal  contract,  binding  on  the  buyer,  but  wiU  not  authorize 
the  seller  to  resume,  the  possession  of  the  goods  if  the  buyer  has  sold 
them,  or  if  they,  by  his  decease,  have  passed  to  his  legal  represen- 
tative.^ 

The  ownership  of  goods  does  not  pass  by  a  fraudulent  or  illegal 
sale,  or  transfer.  Therefore,  if  a  storage  merchant,  or  a  boatman 
on  the  canal,  or  other  person,  without  leave  of  the  owner,  sell  the 
goods  in  his  possession,*^  the  buyer  acquires  no  right  to  them,  as 
against  the  true  owner.(l)  So,  where  a  person  obtains  goods  from 
the  true  owner  upon  false  pretences,  or  under  color  of  purchasing 
them,  the  property  is  not  changed,  and  the  buyer  may  be  sued  for 
the  goods^  before  the  expiration  of  the  credit  agreed  to  be  given. ^ 
Therefore,  where  an  infant  falsely  represented  himself  to  be  of  full 
age,  and  by  means  of  such  fraudulent  representation  purchased 
goods  on  credit,  it  was  holden  that  the  sale  was  void,  and  that  the 
seller  might  reclaim  the  goods,  or  bring  an  action  of  trover  for  them.® 
But  if  goods  thus  obtained  by  fraudulent  pretences  from  the  true 
owner,  icho  intended  at  the  time  of  the  sale  to  part  with  the  ownership^ 
should  be  sold  by  the  fraudulent  buyer  to  a  bona  fide  purchaser, 
who  is  ignoi'ant  of  the  fraud,  he  will  hold  them  against  the  original 
owner.s 

Sec.  II, OF  THE  PLACE  OF  DEMAND  AND  DELIVERY. 

Contracts  made  for  the  delivery  of  goods  at  a  future  period,  are , 
sometimes  silent  in  relation  to  the  time  and  place  of  delivery;  and 
it  often  becomes  difficult  to  ascertain,  from  the  contract,  whether 
the  purchaser  was  to  call  upon  the  seller  and  receive  tlie  articles, 
or  the  seller  was  to  transport  the  articles  to  the  residence  of  the 
buyer,  or  some  other  place. 

(a)  7  Johns.  Kep.  472.  (d)  2  Enp.  C.  L.  Rep.  25;  1  Esp.  R.  430; 

0>)  14  EiiR.  C.  L.  nop.  no.  17  Kiis   C.  L.  Kep.  330. 

(c)  2  Campb.  335;  5  Wend.  Rep.  32.  (e)  15  Mass.  Rep.  359. 

(g)  Id.  1.56;  8  Cow.  Rep.  31. 


(1)   See  pag-cs  22,  23. 
54 


426  SALES.  [Prl.  2,  Title  32, 

The  following  rules  upon  this  suhjcct,  seem  to  be  settled: 

If  the  contract  is  silent  as  to  the  place  of  delivery,  and  contains 
a  promise  to  deliver  on  demand,  the  place  of  business,  or  residence 
of  the  seller,  is  the  place  where  a  delivery  should  be  made;  and  a 
demand  by  the  purchaser  is  necessary,  before  a  suit  can  be  brought 
by  him  on  the  contract.  In  such  case,  the  store  of  the  seller,  if  he 
is  a  merchant;  or  his  shop,  if  he  is  a  muiiufacturer  or  mechanic;  or 
if  he  is  a  farmer,  his  farm,  at  which  the  commodity  sold  is  dej)osited 
or  ke))t,  is  the  place  where  the  demsuid  and  delivery  are  to  be  made."^ 

If  the  contract  is  silent  both  as  to  the  time  and  place  of  delivery, 
the  same  rule  as  above  stated,  in  relation  to  demand  and  place  of 
delivery,  holds.''  Thus:  a  person  promises  to  pay  another,  in  farm 
produce,  thirty-five  dollars,  at  market  price,  without  stating  time  or 
place;  herr^  a  demand  is  necessary  at  the  debtors  or  seller's  resi- 
dence, betore  suit  can  be  brought.*^ 

The  rule  in  these  cases  seems  to  be  founded  upon  the  fact,  that 
an  act,  (a  request  to  pay,)  is  first  to  be  done  by  the  buyer  or  credi- 
tor; and  hence  a  tender  or  delivery  may  be  made,  at  the  same  place 
where  it  is  necessary  to  make  the  demand. 

If  die  contract  is  silent  as  to  the  place  of  delivery,  and  contains 
a  promise  fixing  the  day  or  time  of  delivery,  no  demand  need  be 
made  by  the  purchaser;  but  it  may  sometimes  be  dilHcult  to  ascer- 
tain where  the  pioperty  should  be  delivered  by  the  seller.  In  such 
case,  the  nature  and  use  of  the  article  contracted  for,  and  other 
collateral  circumstances,  may  determine  the  place  of  delivery  in- 
tended by  the  parties.''  If  the  contract,  or  note,  is  for  grain,  cattle, 
salt,  hogs,  or  other  portable  articles,  the  place  of  business  or  resi- 
dence of  the  buyer  or  creditor,  or  such  other  reasonable  place  as  he 
may  designate  is  the  place  where  the  debtor  or  seller  must  deliver 
the  property.^  If  the  articles  are  not  portable,  but  ponderous  and 
bulky,  such  as  lumber,  &:c,,  and  no  place  of  delivery  can  be  infer- 
red, the  seller  or  debtor  must  call  on  the  purchaser  or  creditor,  be- 
fore the  day  mentioned  in  the  contract  for  delivery,  to  know  where 
he  will  receive  the  articles;  and  they  must  be  delivered  at  the  place 
designated  by  him.^  If  no  place,  or  an  um'easonable  one  be  desig- 
nated by  him,  the  seller  may  deliver  the  articles  at  such  place  as 
circumstances  show  to  be  suitable  and  convenient  for  the  purpose 
intended,  and  presumptively  in  the  contemplation  of  the  parties 
when  the  contract  was  made.'' 

It  is,  in  general,  the  duty  of  the  seller,  in  such  case,  to  separate 
the  part  to  be  delivered,  from  his  own.' 

(a)  2  Kent's  C    n.  505;  2  Bibb,  280;  16  Mass.  (e)  4  Wend.  Rep.  377;  Cliipm.  25,  26; 

453;  5  Wend.  187.  5  Wend.  187. 

(b)  Chipm.  49.  (»)  Co.  Litt.  210;  6  Cowen's  Rep.  452. 
(O  5  Cow.  516;  4  Wend.  379.  (h)  2  Kent's  Com.  507. 

(d)  2  Kent's  Com.  507.  (i)  6  Cowen's  Rep.  452. 


§2, 3.]  SALES.  427 


Sec.  III. OF  THE  MODE  AND  TIME  OF  DAT,  IN  WHICH  A  DEMAND  AND 

TENDER  SHOULD  BE  MADE. 

In  case  a  person  is  bound  to,  and  does  make  a  demand  of  the 
article  agreed  to  be  delivered  to  him,  the  question  often  arises 
whether  the  demand  was  made  at  a  reasonable  time  and  place, 
and  within  the  spirit  of  the  contract,  and  the  intention  of  the 
parties. 

If  the  property  is  to  be  delivered  to  the  purchaser  at  the  resi- 
dence of  the  seller,  the  purchaser,  by  himself  or  agent,  should  there 
go  and  make  the  demand;*  and  if  the  seller  is  absent,  a  demand  on 
his  wife  will  be  sufficient.'' 

If  the  contract  requires  the  property  to  be  delivered  at  a  certain 
place,  on  demand,  and  that  place  is  not  the  residence  of  the  seller, 
it  is  not  necessary  for  the  purchaser  to  go  to  the  residence  of  the 
seller,  and  there  maJve  demand;  he  may  make  it  wherever  he  con- 
veniently can,  but  not  at  such  place  and  under  such  circumstances, 
as  would  deprive  the  seller  of  an  opportunity  to  deliver  the  pro- 
perty, at  the  particular  place  required  by  the  contract. 

When  both  the  time  and  place  of  delivery  are  fixed  by  a  demand, 
or  by  the  construction,  or  express  terms  of  the  contract,  the  buyer 
by  himself  or  agent,  must  be  there  ready  to  receive  the  property  :*= 
and  if  the  seller  be  not  there  to  deliver  it,  the  buyer  may  imme- 
diately sue  him,  without  further  demand.  But  it  seems  if  the  de- 
fendant was  not  there  ready  to  deliver  the  property,  it  will  be  no 
excuse  for  him  to  show,  that  the  plaintift'  was  not  there  ready  to 
receive  it.*^ 

If  money  is  to  be  paid,  or  any  other  act  is  to  be  performed  on  a 
certain  day,  and  at  a  certain  place,  the  legal  time  of  performance  is 
the  last  convenient  hour  of  the  day  for  the  transacting  of  business. 
This  rule  is  established  for  the  convenience  of  both  parties,  that 
neither  may  be  compelled,  unnecessarily,  to  attend  during  the  whole 
of  the  day.  The  custom,  however,  in  certain  kinds  of  business,  and 
in  certain  places,  may  regulate  this  time.  For  instance,  notes  pay- 
able at  banks  must  be  paid  within  the  usual  banking  hours. 

If  a  person  tenders  performance  at  an  inconvenient  and  unusual 
hour  of  the  day  for  the  transacting  of  business,  the  other  party 
may  refuse  the  tender,  on  that  account,  and  the  tender  will  not  be 
binding. 

If  parties  meet  at  the  agreed  place,  during  any  part  of  the  day, 
tender  and  refusal  though  not  at  the  last  convenient  hour,  is  suffi- 
cient; for  in  this  case,  neither  party  is  put  to  inconvenience.  If 
the  creditor  is  not  at  the  place  when  the  debtor  arrives  with  the 
money  or  property,  the  debtor  should,  in  general,  be  ready,  until 

(a)  2  nil..  230;  Cliipm.  28,  29.  ('!)  3  Wash.  C.  C.  Rep.  140;  7  Conn.  Rep.  110, 

(b)  16  Mass.  Rep.  4.'3;1.  cited  in  Cliitty's  Con.  272,  note. 
(«)   12  Johns.  liep.  2U9. 


428  SALES.  [Prt.  2,  Title  32, 

the  last  convenient  hour  of  the  day  for  transacting  business,  to  per- 
form the  contract  on  his  part/ 


SjEC.    IV. OF    THK    PERFORMANCE  OF  A  CONTRACT    OF    SALE  AND    THE 

EFFECT  OF  A  DELIVERY  OF  A  PART  OF  THE  PROPERTY. 


If  you  agree  to  deliver  to  me  a  load  of  wood,  or  the  like,  I  am  not 
bound  to  receive  a  half  a  load;  or  if  you  agree  to  deliver  me  one 
hundred  barrels  of  flour,  at  a  certain  time,  I  am  not  bound  to  re- 
ceive ten  barrels;  but  if  I  receive  the  half  load  of  wood,  or  the 
ten  barrels  of  flour,  I  cannot  afterwards  object  to  receiving  the 
residue  because  it  was  not  all  delivered  to  me  at  the  same  time. 
There  are  some  kinds  of  contracts,  which  from  the  nature  of  the 
articles,  (as  a  contract  for  the  delivery  of  two  thousand  flour  bar- 
rels.) or  from  other  circumstances,  it  may  be  fairly  presumed,  that 
the  parties  did  not  contemplate  a  performance  at  one  precise  time, 
and  the  agreement  should  he  construed  accordingly.  In  general, 
however,  a  person  is  not  bound  to  receive  a  part  performance,  but 
may  refuse  it  altogether.'' 

If  an  agreement  is  partly  performed,  by  a  delivery  of  a  part  of 
the  property,  and  both  parties  afterwards  rescind  the  contract,  that 
is,  put  an  end  to  it  by  their  acts  or  agreement,  tlie  value  of  the 
property  delivered,  if  not  before  paid  for,  may  be  recovered  back 
by  suit.  But  the  value  of  the  property  delivered  can,  in  general, 
be  recovered  back,  only  where  the  buyer  has  done  some  act  or  en- 
tered into  some  new  agreement  by  which  it  clearly  appears,  that 
the  contract  upon  which  there  has  been  a  part  delivery  was  after- 
wards put  an  end  to,  or  its  further  performance  waved  or  excused."^ 
For,  if  a  person  pay  money,  or  deliver  property  in  part  perform- 
ance of  a  contract,  and  afterwards  neglect  or  refuse  to  perform  the 
residue,  he  cannot,  in  general,  recover  back  the  money  or  property 
so  paid  or  delivered,  but  must  lose  it.  Thus:  A  agrees  to  give  B 
sixty  dollars  for  a  harse,  and  pays  twenty-five  dollars  in  advance, 
and  agrees  to  pay  the  residue  of  the  money  in  ninety  days,  at  which 
time  the  horse  is  to  be  delivered;  now  if  A  neglects  to  pay  the  re- 
sidue of  the  price,  he  can  neitlier  sue  on  the  contract,  nor  recover 
back  the  twenty-five  dollars.*^ 

A  different  rule  from  that  above  mentioned,  seems  to  have  been 
applied  by  authoritative  courts  to  cases,  where  there  is  an  entire  con- 
tract tu  deliver  a  large  quantity  of  gnods^  consisting  of  distinct  parcels, 
within  a  specified  time,  and  the  seller  delivers  a  part  of  the  goods, 
but  fails  to  deliver  the  residue.  In  such  cases,  it  is  said,  the  buyer 
may  give  the  seller  notice  to  take  back  the  goods,  and  sue  on  the 
contract;  but  that  if  the  buyer  retains  the  part  delivered  after  the 

(a)  3  Wash.  C.  C.  Rep.  140.  (r)  Wrirlit's  Rep.  373;  4  Pick.  1 14. 

(b)  1  Carapb.  53.  (d)  13  Johns.  Rep.  359;  7  Cow.  Rep.  231. 


§4,  5,]  SALES.  429 

seller  has  failed  in  performing,  the  latter  may  sue  the  buyer,  and  re- 
cover the  value  of  the  goods  delivered.*  Thus:  Where  by  a  con- 
tract of  sale  the  seller  agreed  to  deliver  two  hundred  and  fifty 
bushels  of  wheat,  within  a  specified  time,  and  delivered  a  part,  but 
not  the  residue:  Held,  that  he  might,  after  the  time  mentioned  in 
the  contract  had  expired,  recover  from  the  purchaser  the  value  of 
the  wheat  delivered  to,  and  retained  by  him.*  The  more  modern 
decisions  would  seem,  in  such  case,  to  allow  the  defendant  to  re- 
duce the  amount  of  the  recovery  of  the  plaintiff  for  the  goods  de- 
livered, by  showing  the  incomplete  perlbrmance  of  the  contract, 
and  the  amount  of  damages  sustained  thereby. ""(l) 

It  is  a  general  rule,  applicable  as  well  to  contracts  of  sale  as  to 
all  others,  that  where  two  acts  are  to  be  done  at  the  same  time, 
(as  the  delivery  of  goods  on  one  side,  and  the  payment  for  them 
on  the  other.)  no  action  can  be  brought  by  either  party,  until  he 
performs  or  offers  to  perform  his  part  of  the  agreement.''  And  in 
such  case,  if  one  offers  to  perform  and  the  other  discharges  him,  the 
former  may  have  his  action,  and  recover,  the  same  as  if  he  actually 
performed  his  part.^  So,  it  is  a  general  rule,  that  if  you  engage 
with  A  to  do  an  act,  on  the  previous  performance  of  another  act 
by  A,  or  other  person,  no  action  can  be  sustained  against  you  by 
A,  unless  he  shows  the  previous  act  done;  or  that  its  performance 
was  dispensed  with;  or  that  you,  or  the  person  for  whom  the  act 
was  to  be  done,  prevented  him  from  doing  it,  or  that  he  offered  to 
perform  it.^ 


Sec.  V.  —  OF  the  effect  of  a  tender  upon  the  rights  of  the  buyer 
AND  seller;  and  of  the  damages  in  such  case,  and  avhere 
NO  tender  is  made. 

The  general  rule  in  relation  to  the  rights  of  a  seller,  under  a 
contract  of  sale,  where  he  has  tendered  property,  and  tiie  buyer 
refuses  to  receive  it,  is  this:  The  seller  may  leave  tiie  property  at 
some  secure  place,  at  or  near  where  the  tender  ought  to  be  and  is 
made,  and  recover  the  contract  price;  or  he  may  keep  it  at  the 
buyer's  risk,  using  reasonable  diligence  to  preserve  it,  and  recover 
the  contract  price,  and  the  expense  of  preserving  and  keeping  it; 
or  he  may  sell  it,  and  recover  from  the  buyer  the  difference  be- 
tween the  contract  price,  and  the  price  at  which  it  fairly  sold.  If 
he  use  the  property  as  his  own,  and  if  he  do  not  show,  on  the  trial, 
the  price  at  whicli  it  was  sold  by  him,  he  c:ui  only  recover  in  an 
action  against  the  buyer,  the  dilicrence,  with  interest,  between  the 
market  price  at  the  time  and  place  of  the  tender,  and  the  contract 
price, '^ 

(a)  17  En?.  C.  L.  Rep.  401  ;    11   Id.  256,   per     (e)  1  T.  R.  645;  Dous.  684. 

Bkst,  c.  J.  (a)  19  Johns,  ncp.  t;9. 

(c)  Cliilly's ("on.  276,277,  [3(1  Am.  Ed.]  (li )  Stat.  TENotrt.  VVrifjlU's  Rep.  555:  8  Wend. 

(d)  2  Kent's  Com.  465.  Rep.  435;  2  Kent's  Com.  504;  15  Eng.C.  L.  It.  IJl. 

(1)  A3  to  the  (laiTiages  in  such  cases,  see  the  next  section  of  tiiis  Title. 


430  SALES.  [Prt.  2,  Title  32, 

If  the  seller  have  the  property  at  the  time  and  place  required  by 
the  contract,  and  there  be  no  one  there  to  receive  it,  he  ought  to 
place  it  in  some  secure  place,  and  not  abandon  it,  so  as  to  expose 
it  to  destruction.*  In  such  case,  he  may  sell  it  or  keep  it  for  the 
buyer,  or  use  it  himself,  and  he  will  have  tiie  same  remedy  as  if  the 
tender  had  been  refused. 

The  statute  of  this  State  provides,^  "that  in  any  action  or  suit, 
brouu;ht  on  any  writing  obligatory,  promise,  or  contract,  for  the 
payment  of  any  article,  or  thing  other  than  money,  or  for  the  per- 
formance of  any  work  or  labor,  if  the  defendant  shall  plead  that 
he  did  tender  payment  or  performance  of  such  writing  obligatory, 
promise,  or  contract,  at  such  time  and  place,  and  in  such  articles, 
work,  or  labor,  as  by  such  writing  obligatory,  promise  or  contract, 
he  was  bound  to  pay,  or  perform,  and  if  the  court  or  jury  shall  find 
that  the  defendant  did  tender,  as  alledged  in  his  plea,  they  shall 
at  the  same  time  assess  the  value  of  the  property  or  labor  so  ten- 
dered; ;uid  thereupon  judgment  shall  be  rendered  in  favor  of  the 
plaintiir.  for  the  sum  so  found,  without  interest  or  costs,  unless  the 
defendant  shall  forthwith  perform  his  contract,  or  give  to  the  plain- 
titfsuch  assurance  as  the  court  may  approve,  that  he  will  perform 
the  same,  within  such  time  as  the  court  shall  direct,  in  which  case, 
judgment  shall  be  rendered  for  the  defendant." 

The  statute,  it  will  be  perceived,  is  applicable  to  cases  where  the 
defendant  has,  at  the  tim^and  place  required  by  the  contract,  made 
a  tender  of  the  kind,  amount,  and  quality  of  property,  mentioned  in 
the  agreement.  It  could  not  be  considered  a  tender  if  the  prop- 
erty was  offered  to  the  plaintiff  after  the  same  was  payable,  or  at  a 
dill'erent  place  from  the  one  which  the  agreement  expressly  or  con- 
structively demands,  or  if  the  property  offered  was  not  the  proper 
kind,  (juality,  value,  or  amount.  But  when  the  tender  is  complete 
as  to  tiqie,  place,  quality,  kind,  and  value  or  amount,  then  the  jus- 
tice should  ascertain  the  value  or  price  of  the  property,  at  the  time 
and  place  the  property  should  have  been  delivered.  If  one  wishes 
to  make  his  tender  complete,  it  will  be  safest  for  him,  even  if  the 
other  party  does  not  demand,  or  come  after,  or  intend  to  take  the 
property,  to  weigh,  count,  measure,  or  otherwise  separate  the  pro- 
perty tendered,  from  its  mass.  If  the  c6ntract  is  for  the  payment 
of  so  many  dollars  in  proj^erty,  then  the  defendant,  in  order  to  ren- 
der his  tender  complete,  must  show  that  the  property  tendered  was 
of  the  value  required;  and  the  judgment  mentioned  in  the  statute 
will  of  course  be  for  the  value  stated  in  the  contract. 

For  instance,  I  agree  to  pay  you  at  your  house  next  Monday, 
fifty  dollars  in  corn,  at  the  market  price.  If  I  tender  to  you  the 
quantity  at  the  time  and  place,  and  you  refuse  to  receive  it,  and 
sue  me  on  the  contract,  and  I  prove  the  tender,  the  justice  will 
render  judgment  for  fifty  dollars,  without  interest  or  costs,  unless 
I  will  forthwith  deliver  the  property,  or  give  such  assurance  as 
the  justice  approves,  that  I  will  do  so,  within  such  time  as  the  jus- 

(a)  4  Wend  Rep.  525.  (1>)  Stat.  Tender. 


§5,6.]  SALES.  431 

tice  shall  direct;  in  which  case  judgment  will  be  rendered  in  my 
favor  for  the  costs. 

Contracts,  however,  are  not  always  for  the  payment  of  so  mnch 
money^  in  property,  as  in  the  instance  above  mentioned.  When 
the  contract  is  for  the  delivery  of  property  for  which  the  purchaser 
is  to  pay  a  specific  price;  here,  the  price  specified  does  not  deter- 
mine its  value;  but  the  justice  must  ascertain  the  true  market  price 
or  value,  at  the  time  and  place  it  should  have  been  delivered.^  For 
instance:  I  agree  to  deliver  to  you  at  your  house  next  Monday,  two 
hundred  bushels  of  corn  for  which  you  have  paid  me  fifty  dollars. 
Now  the  corn  may  be  worth  sixty  dollars  next  Monday,  and  it 
W'ould  not  be  reasonable  that  I  should  cheat  you  out  of  the  difier- 
ence,  by  failing  to  deliver  it.  You  would  be  entitled  to  a  judgment 
for  sixty  dollars,  if  that  was  the  value  of  the  corn,  nt  the  time  it 
was  to  be  delivered,  together  with  the  interest  and  costs,  if  no  ten- 
der w^as  made.  But  suppose  the  corn  worth  only  forty  dollars  on 
the  next  Monday,  and  I  tender  the  corn  to  you;  it  would  then  be 
wrong  for  you  to  take  advantage  of  the  fall  in  the  price,  and  cheat 
me  out  of  ten  dollars.  If  I  proved  the  tender,  the  justice  would 
render  judgment  against  me  for  the  forty  dollars,  without  interest 
or  costs,  unless  I  delivered  the  property  forthwith,  »Stc.,  in  compli- 
ance with  the  statute  just  mentioned. 

When  the  seller  neglects  or  refuses  to  deliver  the  article  which 
he  has  agreed  to  sell,  and  no  money  has  been  paid  by  the  buyer, 
the  measure  of  damages,  is  the  difference  between  the  contract 
price,  and  the  value  of  the  article  when  it  should  have  been  deliv- 
ered, with  interest  from  that  time.''  But  if  the  money  has  been 
paid  for  the  article,  then  the  buyer  will  also  be  entitled  to  a  judg- 
ment as  well  for  the  amount  he  paid,  as  the  difference  in  the  value 
of  the  article  as  above  mentioned,  together  with  interest. 


Sec.  VI. —  OF  the  remedy  for  defects  in  the  quality  and  title 

OF  PROPERTY. 


When  the  buyer  of  property  is  deceived  in  respect  to  its  quality, 
and  there  has  been  an  express  or  implied  warranty  which  covers 
the  defect,  he  may  sue  on  the  contract  of  warranty.  If  the  seller 
has  intentionally  and  actually  deceived  the  buyer,  as  to  the  (juality 
of  the  goods,  either  by  concealment  or  misrepresentation,  it  is  a 
fraud  for  which  the  seller  is  liable,  whether  there  was  a  warranty 
or  not;  and  the  buyer  may,  if  he  chooses,  sue  on  the  contract  of 
warranty,  or  for  such  fraud,  if  there  was  both  a  warranty  and 
fraud. 

If  you  sell  me  a  horse  which  you  know  is  foundered,  and  con- 
ceal this  from  me,  and  also  warrant  him  sound,  you  are  liable  to 
an  action  on  the  warranty,  or  I  may  sue  you  for  the  deceit  and 

(a)  6  Wliea.  109;  but  ace  3  Cowcn'a  Rep.  82.       (!>)  9  Wend.  Rep.  129;  3  VVlica.  200;  5  Id.  385. 


432  SALES.  [Prt.  2,  Title  32, 

IVaad.  If  I  clioose  to  sue  you  on  the  warranty,  and  recover,  I  can- 
not afterwards  sue  and  recover  i'or  the  fraud. 

When  there  is  both  fraud  and  warranty,  upon  either  of  whicli 
damages  may  be  recovered  on  account  of  the  defect,  an  action  for 
the  fraud  is  to  be  preferred,  as  will  be  seen  hereafter  in  treating  of 
fraud,  in  the  ([uaHty  of  things  sold. 

When  there  has  been  a  special  contract  as  to  tiie  quality  and  price 
of  the  goods,  if  the  goods  delivered  do  not  correspond  with  the  con- 
tract, the  vendee  may  repudiate  the  goods  ,and  return  them;  or  he 
may  give  notice  to  the  vendor  to  take  them  back,  after  he  has  given 
them  a  reasonable  trial;  and  in  such  a  case  the  vendor  cannot  re- 
cover on  the  contract;  for  he  has  failed  to  do  that  which  was  the 
consideration  of  the  vendor's  promise  to  pay,  namely,  to  supply 
goods  corresponding  with  the  stipulation. 

If  the  goods  supplied  do  not  correspond  with  the  contract,  and 
the  vendee  retain  them,  he  may,  without  having  given  notice  of 
their  defect,  set  up  their  inferiority  as  a  defence  to  an  action  on  the 
contract;  and  thereby  reduce  the  vendor's  claim  to  the  actual  value. 
And  to  entitle  the  plaintiff  even  to  their  value  under  such  circum- 
stances, he  must  show  some  new  iinplied  contract,  arising  from  the 
defendant's  conduct  in  respect  of  the  goods,  as  by  usijjg  them. 
"And,"'  said  Bayley  11  '•'•an  abatement  of  the  price  is  a  convenient 
and  intelligible  rule,  laid  down  in  Street  vs.  Blay^  not  to  put  the  de- 
fendant to  a  cross  action."* 


(^i)  Of  fraudident  concealment  or  misrepresentation  of  the  quality 
of  things  sold. 

When  there  is  no  express  or  implied  warranty,  such  as  will  be 
hereafter  stated,  in  relation  to  the  quality  of  property  purchased, 
and  it  is  unsound,  or  otherwise  defective  in  quality,  the  buyer  can- 
not sue  the  seller  on  that  account;  unless  the  deception  complained 
of  was  intentional  on  the  part  of  the  seller,  and  the  buyer  has  been 
actually  deceived,  and  has  sustained  danuige. 

First — The  deception  complained  of  must  have  been  intentional 
on  the  part  of  the  seller.  The  seller  could  not  intend  to  deceive 
the  buyer,  if,  when  he  sold  the  property,  he  was  ignorant  of  the 
defect.  The  plaintiff  must  therefore  satisfy  the  justice  by  positive 
or  circumstantial  proof,  or  from  the  nature  of  the  defect  itself,  that 
the  defendant,  when  he  sold  the  property,  knew  of  the  defect;  for 
if  neitlicr  the  seller  nor  the  buyer  knew  of  the  defect  at  the  time  of 
the  sale,  there  is  no  deception  nor  fraud,  and  the  seller  is  in  no  way 
responsible  (unless  there  w^as  an  express  or  implied  warranty,)  even 
though  the  article  be  entirely  spurious  and  worthless,  and  fraud- 

(a)  1  Mason  437;  8  Wend.  109;  22  En!?.  C.  L.  Rep.  122;  17  Id.  373;  2  Id.  316;  32  Id.  125;  14 
Id.  121:  2  Taunt.  2;  8  Cow.  3;,  13  Johns.  Rep.  302;  15  Id.  2:10;  8  Id.  353;  3  Id.  236;  1  Pet.  C.  C. 
Rep.  221.  224;  Stat.  685;  4  Wend.  483;  2  Kent's  Com.  (3d  cd.)  474. 

(1)  See  page  317. 


§6,  (A).]  SALES.  433 

ulently  made  for  the  express  purpose  of  resembling  and  being  sold 
for  a  valuable  commodity.  But  in  such  case,  the  seller  must  be  in- 
nocent, and  ignorant  of  the  fraud  and  defect  at  the  time  of  the  sale.^ 
It  must  also  be  proved  either  by  positive  or  circumstantial  evidence 
in  order  to  make  out  the  fraud, — 

Second — That  the  buyer  has  been  actually  deceived.  If  the 
defect  complained  of  was  mentioned  to  the  buyer  at  or  before  the 
sale,  he  was  not  deceived.  If  the  defect  was  an  open  and  obvious 
one,  such  as  a  man  of  ordinary  care  must  have  seen,  the  law  pre- 
sumes that  it  was  seen  by  the  buyer,  and  the  seller  is  not  responsi- 
ble. If,  however,  the  defect  was  open  and  obvious,  and  the  seller 
said  or  did  any  thing  whatever  with  the  intention  to  divert  the  eye, 
obscure  the  observation,  or  conceal  the  defect  from  the  buyer,  this 
would  prove  a  knowledge  of  the  defect,  an  intention  to  deceive, 
and  it  might,  in  such  case,  be  also  fairly  presumed,  that  the  buyer 
was  deceived. 

What  has  been  heretofore  said  in  relation  to  puffing,  and  the 
false  commendation  of  articles,  is  here  applicable. (1)  It  must  also 
be  proved, — 

Third — That  the  buyer  has  sustained  a  damage  or  loss.  Where 
the  suit  is  brought  upon  the  warranty,  the  damages  are  generally 
limited  to  an  estimate  of  the  actual  injury  to  the  party.  But  in  a 
suit  for  a  fraudulent  concealment  or  misrepresentation,  in  respect 
to  the  quality  of  property,  the  judgment  for  damages  ought  not  to 
be  limited  to  a  mere  estimate  of  the  defect  of  the  property.  Add 
to  this  an  amount  that  will  be  a  punishment  to  the  defendant,  and 
a  lesson  to  others.  Fraud  is  a  crime,  as  injurious  to  the  community 
as  theft;  and  when  fully  made  out,  should  be  met  with  such  dam- 
ages as  will  have  a  moral  influence  upon  the  neighborhood.'^(2) 

(a)  1  Wend.  Rep.  185.  ages  sliould  be  given,  it  seems  to  nie  that 

(b)  Contra,  Wright's  Rep.  68t).     If  there  be  they  are  required  in  cases  of  fraud, 
any  civil  cases  in  whicli  esenii)lary  dam- 


(1)  See  pag-e  317. 

(2)  The  following  case  is  extracted  from  4  Hall's  Law  Journal,  618,  and  will 
show  the  application  of  the  law  upon  frauds  in  the  sale  of  horses: 

supEnion  couuT.     nortu  caholina. 

Joseph  Bluunt  v.  John  Chester. 

'•  This  was  an  action  on  the  case  to  recover  damajycs  for  a  deceit  in  the  sale  of  a 
horse.  The  plaintitt"  bought  tlie  horse  in  question  from  the  defendant  in  October, 
1807,  for  tlie  sum  of  one  liundred  and  twenty-eight  dollars.  Soon  after,  in  riding 
him  from  Windsor  to  Newbern,  tlie  horse  became  i)crfcctly  blind.  It  appeared  in 
the  evidence,  that  the  defendant  had  pin-chascd  tiie  horse  aI)out  twelve  months  be- 
fore he  sold  him.  His  eyts  were  at  lliat  time  defective.  'I'hc  dclcndant  ajjplied 
a  remedy  w  hicli  produced  u  (emjiorary  relief.  lUit  wIr never  the  horse  u  as  rode 
a  journey  the  disorder  returned.  The  defendant  in  bringing  him  from  Tennessee, 
had  discovered  he  was  getting  bUnd,  and  was  obliged  to  drive  scry  moderately  to 


434  SALES.  [Prt.%TUh?>% 

In  such  action,  no  damages  can  be  recovered  for  the  keep  of  a 
horse  previous  to  an  orter  by  the  i>hiintili"  to  return  him.* 

If  a  horse  be  sold  to  be  taken  by  the  buyer  ;!.s  he  is,  sound  or  un- 
sound, and  nothing  more  appears,  the  seller  is  not  liable  for  any  un- 
soundness, though  lie  had  knowledge  of  it  at  the  time  of  the  sale, 
and  did  not  communicate  such  knowledge  to  the  buyer.     But  if  it 

(a)  9  Count.  107. 


prevent  the  loss  of  his  eye  siglit.  The  plaintiff  purchased  witliout  being'  appris- 
ed of  this  defect.  The  defendant  h:id  refused  to  warrant,  saying-  he  had  determin- 
ed never  to  do  so,  as  he  liad  already  been  injured  by  warranting  his  iiorses.  He 
observed  while  exposing'  his  horse  to  sale,  that  the  eyes  of  some  looked  dull,  but 
this  was  occasioned  by  their  having  traveled  over  dusty  roads.  lie  afterwards  ac- 
knowledged, tliat  he  knew  the  horse  was  subject  to  blindness,  but  thought  he  was 
not  answerable  as  he  liad  not  warranted.  The  horse  after  he  became  blind  was 
sold  for  sixty  dollars.      This  was  the  evidence  on  tlie  part  of  the  plaintift". 

"The  defendant  endeavored,  but  unsuccessfully,  to  ]irove  tliat  the  horse,  after 
he  came  to  plaintilf's  possession,  had  received  some  injury,  by  which  the  blindness 
might  lia\e  been  occasioned. 

"  After  argument  by  counsel,  his  honor  Judg-e  Hall  observed,  that  this  was  an 
action  to  recover  damages  for  deceit  in  the  sale  of  a  horse.  The  g-rounds  of  this 
action  were,  that  the  property  sold  was  defective;  tiiat  this  defect  was  known  to 
tlie  seller,  and  unknown  to  tlie  purchaser.  If  tlie  jury  believed,  that  the  plaintiff' 
did  know  of  the  defect  at  the  time  he  bought  the  horse,  lie  could  not  complain. 
He  liad  sustained  no  injiu'y  from  the  defendant.  It  was  his  own  fidly.  ]5ut  it  was 
for  the  jur)'  to  decide  whether  lie  did  or  did  not  know  it.  It  was  not  because  he 
mig-ht  possibly  have  known  it,  (hat  the  defendant  was  to  be  discharg-ed.  If,  inileed, 
the  defect  was  so  open  and  visible  that  lie  could  not  well  avoid  discovering  it,  then 
the  jury  must,  of  course,  presume  against  him.  In  tlie  present  case,  skill  might  have 
been  required.  The  plaintiff  might  not  have  been  possessed  of  this  skill.  If 
in  fact,  he  was  ignorant  of  the  circumstance,  thoug'h  a  person  better  acquainted 
with  horses  mig'lit  have  discovered  it,  the  deceit  and  criminality  in  the  defendant 
were  still  the  same.  He  was  imposing-  on  the  plainlifl'as  sound,  what  he  knew  to 
be  unsovind.  He  was  not  acting  with  that  fairness  and  plain  dealing  which  became 
an  honest  man.  Ag'ain,  it  had  been  said,  the  plaintifl' [daced  no  confidence  in  the 
defendant  —  he  saw  the  horse  examined,  and  liked  him;  wh}-  was  the  defendant 
bound  to  disclose  the  defects  of  the  property,  which  it  was  his  interest  to  sell  to 
the  best  advantage?  He  was  bound  by  the  rules  of  g-ood  faith  and  honesty.  He 
was  bound  as  a  man  of  truth,  of  candor,  and  of  fair  dealing'.  It  is  a  principle  in 
morals  as  well  as  a  maxim  in  the  municipal  law,  that  -.i  siij)j)rc.ssion  of  truth,  is  often 
egual  to  a  xu^geistioii  of  falsehood;  a  deception  may  be  as  eileclually  occasioned  by 
the  one  as  the  other.  Men  must  place  some  confidence  in  one  another,  or  there 
must  be  an  end  to  civil  intercourse.  The  confidence  reposed  by  the  plaintilfin  the 
defendant  in  the  present  case,  necessarily  arose  from  the  nature  of  the  transaction. 
It  was  not  an  unreasonable  one.  The  courts  of  that  country,  from  which  wc  de- 
rive our  laws,  have  lately  gone  a  g'reat  way  in  enforcing-  moral  obligation,  and  I 
trust  we  shall  g-o  at  least  as  far.  In  a  recent  case  decided  in  England,  A.  iiad  sold 
a  vessel  to  B,  who  agreed  to  take  hev  just  as  she  stood.  It  appeared  afterwards 
that  some  of  her  timbers  were  unsound;  that  this  w.as  known  to  A,  but  could  not 
have  been  known  to  B,  when  lie  purchased.  Tiie  court  determined  that  A  ought 
in  justice  and  hones'y,  to  have  disclosed  this  defect,  and  as  he  had  not  done  so, 
should  be  liable  to  li  in  damages.  Manj'  persons  in  this  country  have  considered 
themselves  loosed  from  the  obligations  of  morality,  when  they  were  trading-  in 
horses.  It  is  time  to  correct  this  false  notion.  If  the  jury  believe  the  evidence  in 
the  present  case,  and  that  the  plaintiff  knew  not  the  unsoundness  of  the  horse,  at 
the  time  he  purchased,  they  will  give  ample  and  exemplary  damages. 

"The  jury  retired,  and  in  a  short  time  returned  with  a  verdict  for  60/.  10s.,  for 
which  judgment  was  entered." 


§6,  (A),  (B).  ]  SALES.  435 

further  appear,  in  such  case,  that  any  misrepresentation  were  used 
by  the  seller,  he  is  Hable  for  such  misrepresentation.  Therefore, 
where  a  horse  was  thus  sold,  and  it  appeared  that  he  was  then  thin 
in  flesh  from  disease,  and  had  a  bunch  on  his  neck,  also  the  effect  of 
disease;  and  the  seller  sold  him  as  he  was,  sound  or  unsound,  but  at 
the  same  time  falsely  represented  to  the  buyer  that  the  horse's  want 
of  flesh  was  caused  by  a  long  journey,  and  the  bunch  on  his  neck 
by  his  having  been  bled;  it  was  held  that  the  seller  was  liable  to  an 
action  for  these  false  and  fraudulent  affirmations.'^ 

So,  if  by  false  and  fraudulent  misrepresentations  a  party  is  induced 
to  enter  into  a  written  agreement,  and  is  thereby  damnihed,  he  may 
sue  in  an  action  on  the  case  for  the  deceit,  and  give  verbal  evidence 
of  the  representations,  although  they  are  not  noticed  in  the  written 
contract.^  Thus:  the  owner  ol  a  public  house,  made,  pending  the 
treaty  for  its  sale,  deceitful  representations  respecting  the  amount 
of  business  done  in  the  house,  and  of  the  rent  received  for  a  part  of 
the  premises,  whereby  the  plaintiff' was  induced  to  give  a  large  sum 
for  the  premises;  it  was  holden  that  the  latter  could  recover  dam- 
ages for  the  deceitful  representations,  although  they  were  not  noticed 
in  the  conveyance  of  the  premises,  or  in  a  written  memorandum  of 
the  bargain,  which  was  drawn  up  after  these  representations  were 
made,^  If  a  party  be  induced  to  purchase  an  article  by  fraudulent 
misrepresentations  of  the  seller  respecting  it,  he  may,  when  he  dis- 
covers the  fraud,  immediately  rescind  the  contract,  by  returning 
the  article,  and  then  recover  back,  by  action,  the  money  paid.  But 
if,  after  discovering  the  fraud,  the  buyer  continue  to  use  or  deal 
with  the  article  as  his  own,  he  must  sue  for  the  fraud,  and  cannot  ten- 
der the  article,  nor  rescind  the  contract.^  If  there  has  been  an  ex- 
change of  articles,  and  boot  given  by  the  party  defrauded,  he  may, 
after  tender,  sue  in  an  action  of  assumpsit  for  the  money,  and  also 
maintain  an  action  of  trover  for  the  article  he  delivered.^'  But  if 
he  wisiies  to  rescind  the  contract,  he  ought  not  to  retain  any  part 
of  the  consideration  he  received  upon  the  sale  or  exchange;  and  if 
in  the  exchange  he  received  money  as  boot^  he  ought  to  return  not 
only  the  defective  article,  but  also  the  money  he  received;  for  he 
shall  not  compel  even  the  fraudulent  seller  to  an  action,  to  recover 
back  the  property  he  has  parted  with  in  the  exchange.' 


(B)  Of  the  different  kinds  of  Warranti). 


Warranties  are  of  two  kinds;  express  and  iinpHed.  I'iX press  war- 
ranties are  those  stipulations  and  promises,  with  regard  to  the  con- 
dition or  general  or  particular  quality  of  the  articles  sold,  which  the 
seller  makes  to  the  buyer  in  express  terms,  at  the  time  of  the  sale. 

(c)  9Coniit.  107.  (k)  28  En^'.  (.'.  I..  Rop.  29;  21  U.  4M. 

(dj  2L(i.  Raym.  lllf?.  (h)  4  Mass.  Hep.  hOZ;  hut  see  3  Caiiipl).   299. 
(c)  10  Kn-;.  C.  J..  Rep.  202;  but  hcc  4  Tuunt.  Cowp.  iil»;  Douyi,.  24,  (n.) 

779.  (i)  4  Mass.  Kcp.  502. 


436  SALES.  [Prt.  2,  Title  32, 

Implied  warranties  arc  such  as  the  law  says,  from  the  nature  of  the 
transaction,  were  made  at  the  time  of  the  sale,  tiuni^ii  neither  party 
said  any  thinii;  about  a  warranty.  If  1  have  a  horse  in  my  posses- 
sion, and  sell  him  to  you,  the  law  says,  Irotn  the  nature  of  the  trans- 
action, that  1  warranted  the  horse  to  belong  to  myself,  or  that  1  had 
a  right  to  sell  him.  But  the  law  will  not  imj^ly  that  1  warranted 
the  horse  to  be  sound,  and  therefore  a  warranty  of  soundness  must 
be  made  in  express  terms. 


(C)  Of  implied  Warranlies. 

In  every  sale  of  goods,  or  other  personal  property,  if  the  posses- 
sion be  at  the  time  in  another,  and  there  is  no  express  warranty  of 
title,  the  ])urchaser  buys  at  his  peril,  and  cannot  sue  the  seller  on 
failure  of  the  title;  unless  the  seller  knew  he  had  no  title,  in  which 
case,  he  would  be  liable  for  the  fraud.''  Even  if  a  sheriff'  or  con- 
stable sell  property  which  he  knows  at  the  time  does  not  belong  to 
the  judgment  debtor,  and  says  nothing  about  it  at  the  sale,  the  oHi- 
cer  is  responsible  to  the  purchaser,  wlio  may  sue  him,  and  recover 
back  the  purchase  money,  though  it  has  been  paid  over  to  the  judg- 
ment creditor.'  if  the  seller  has  possession  of  the  article,  and  he 
sells  it  as  his  own  property,  he  is  understood  to  warrant  the  title, 
though  he  says  nothing  about  it:  and  in  such  case,  if  the  seller  had 
no  title,  the  purchaser  may  recover  back  the  price  he  paid. 

If  you  enter  into  a  contract  to  make  and  deliver  to  me  a  certain 
article,  for  example,  a  plough,  and  the  quality  is  not  specified,  the 
law  infers  that  it  must  be  such  as  is  ordinarily  considered  fit  for  use 
and  sale.""  The  manufacturer  of  an  article  impliedly  warrants  that 
the  article  shall  be  lit  for  the  use  intended,  and  of  a  merchantable 
quality." 

If  you  show  me  a  sample  of  goods,  and  on  the  faith  of  the  sam- 
ple I  purchase  the  goods,  here  there  is  an  implied  warranty  that  the 
sample  upon  which  the  bargain  was  made,  is  a  fair  specimen  of  the 
goods;  and  if  it  was  so  in  fact,  and  there  was  no  deception  on  the 
part  of  the  seller,  the  purchaser  is  bound  by  the  contract,  though 
the  goods  should  turn  out  not  to  be  good  or  merchantable,  from 
some  secret  defect  in  the  sample  as  well  as  in  the  bulk,  imknown 
to  both  parties  at  the  time  of  the  sale." 

If  you  write  to,  or  request  a  person  to  send  you  an  article,  and 
he  selects  it,  there  is  an  implied  warranty  that  the  article  shall  be 
of  at  least  an  ordinary  merchantable  quality.  The  buyer  is  not,  in 
such  case,  bound  to  take  it  if  not  merchantable,  but  may  immedi- 
ately return  it,P  or  he  may  sue  the  seller  for  not  performing  his  con- 
tract, if  he  agreed  to  provide  the  article.^  But  if  the  property  be 
present,  though  not  examined,  as,  for  example,  paint  in  unopened 

(k)  2  Kent's  Com.  478.  (o)  S  Johns.  Rep  404;  2  East,  314;  2Pick.  219. 

(I)  1  Eng.  C.  L.  Rep.  224.  (p)  4  Cimpb.  22.  144;  2  Kent's  Com.  479  ;    2 

(in)  Id.  ib.;  4  Campb.  169.  Pick.  220. 

(n)  Id.  ib.;  Id.  ib.;  9  Wend.  24;  15  Eng.  C.       (q)  1  Eng.  C.  L.  Rep.  327. 
L.  Rep.  529. 


§6,  (C).]  SALES.  437 

kegs,  and  a  full  price  is  paid,  and  it  turns  out  to  be  of  an  inferior 
quality,  and  of  little  or  no  value,  still  there  is  no  implied  warranty; 
and  if  the  seller  was  ignorant  of  the  quality  of  the  article  he  is  not 
guilty  of  a  fraud,  but  is  entitled  to  recover  the  full  price/ 

But  the  article  delivered  must  correspond  with  the  commodity 
sold  in  sjyecie;  for  there  is  in  general  an  implied  warranty  to  that 
extent,  unless  the  facts  or  circumstances  show  that  the  purchaser 
took  upon  himself  the  risk  of  determining  the  kind  of  species  pur- 
chased. Therefore,  if  you  call  on  a  merchant  and  ask  for,  and  pur- 
chase what  you  suppose  to  be,  a  keg  of  white-lead  paint,  which  is 
unopened;  and  it  turn  out  to  be  ground  chalk  instead  of  white-lead, 
the  merchant  is  liable  in  damages,  although  he  was  ignorant  of  the 
deception;  for  the  article  is  not  of  the  kind  or  species  which  you 
called  for,  or  which  was  contemplated  by  the  sale.*  But  if,  under 
such  circumstances,  the  paint  were  partially  adulterated,  so  as  not 
to  destroy  its  distinctive  character,  nor  to  render  it  unmerchantable 
as  white-lead  paint,  the  seller  would  not  be  liable  on  any  implied 
warranty.*- 

Where  provisions,  such  as  meat,  &c.,  are  sold  at  a  market,  or 
other  place, /or  domestic  use^  the  very  offer  to  sell  is  an  implied  war- 
ranty that  they  are  sound  and  wholesome,  when  nothing  to  the  con- 
trary is  expressly  stated.  In  such  case,  the  seller  must,  in  general, 
be  presumed  to  know  whether  such  provisions  are  wholesome  or  not, 
and  in  case  they  are  not  so,  he  will  be  responsible  to  the  buyer.'' 

Where,  however,  the  provisions  are  not  sold  nor  purchased  for 
domestic  use,  but  are  the  subject  of  trade  or  commerce,  as  where 
one  merchant  sells  to  another  pork  or  beef  in  barrels,  the  same  rule 
applies  as  to  other  property;  and  the  buyer  must  either  show  an 
express  warranty,  or  that  there  has  been  an  intentional  deception, 
successfully  practiced  upon  him  by  the  seller,^''  before  he  can  re- 
cover damages  on  account  of  the  unwholesome  or  unsound  quality 
of  the  provisions.  There  is  no  implied  warranty  of  the  quality  of 
property  upon  an  exchange;  and  to  support  an  action,  direct  fraud 
or  express  warranty  must  be  proved.* 

In  an  action  by  the  buyer  of  pi'operty  against  the  seller,  on  the 
implied  warranty  of  title,  the  record  in  the  previous  action  in  which 
the  buyer  was  evicted  or  lost  the  property,  and  of  the  pendency  of 
which  action  the  seller  had  notice,  is  evidence  against  him.''  But 
if  the  seller  had  no  notice  of  the  action,  the  record  cannot  be  re- 
ceived in  evidence  against  him  as  proof  that  he  was  not  the  owner 
of  the  propert,y.(l)  It  seems  that  if  you  sell  an  article  as  your  own 
to  A,  he  knowing  at  the  ti?ne  that  B  claims  it  as  his  property,  A  can- 
not, by  paying  B  for  it,  thereby  defeat  your  action  for  the  ])rice, 
even  though  B  is  the  rightful  owner.     But  if,  after  the  sale,  B  assert 

(r)  4  Johns.  Rep.   421:   contra,  9   Wend.  (v)  12  Johns.  Rep.  468; 

Rep.  20.  (w)  HI  M.nss.  Rep.  197;  Imt  sec  9  Wend.  Rep.  20  ■ 

(s)  3  Rawlc's  Rep.  23,  and  tlic  cases  there  (a)  .3  Caniph.  351. 

cited;  9  Wend.  20-  (l>)  1  Johns.  Rep.  517;  13  Id.  224. 
(t)  3  Rawlc,  168. 

(I)  As  to  the  seller  being'  a  witness  in  such  action,  sec  pag-e  59. 


438  SALES.  [Prt.  2,  Title  32, 

his  riMit  to  the  article  hy  suing  A  and  recovering,  this  will  be  a 
good  defence  to  your  action  against  A  lor  the  price." 

(D)  Of  an  express  Warranhj. 

Where  there  is  no  implied  warranty,  and  the  seller  practices  no 
deception,  as  has  been  bei'ore  stated,  then  the  buyer  takes  the  pro- 
perty subject  to  all  defects,  and  must  pay  the  price  he  agreed  to, 
unless  there  is  an  express  warranty  of  its  (jiiality. 

A  warranty,  in  order  to  be  binding,  must  be  entered  into  at  the 
time  the  sale  is  made,  or  before;  and  if  before,  it  must  appear  to 
have  been  a  part  of  the  terms  of  the  sale  itself     If  you  to-day  pro- 
pose to  sell  me  your  horse,  and  to  warrant  him  sound,  and  to-mor- 
row I  inform  you  that  I  will  take  the  horse,  and  you  deliver  him  to 
me;  here,  if  there  was  nothing  said  at  the  time  the  sale  was  com- 
pleted to  change  the  terms  of  the  contract,  your  proposition  to  war- 
rant, though  made  before  the  sale,  will  form  a  part  of  it.     A  pro-  / 
mise,  after  the  sale,  to  warrant  the  property  is  not  binding,  as  it  is  ) 
then  made  without  any  consideration.     So,  if  representations  are    ' 
made  previous  to  a  sale,  amounting  to  a  w-arranty,  and  the  sale  is 
afterwards  made  by  a  written  transfer  without  a  clause  of  warranty 
inserted,  the  law  presumes  that  the  writing  contains  the  whole  con- 
tract, and  the  warranty  will  be  inoperative.*^ 

No  particular  form  of  words  is  necessary  to  make  a  warranty, 
though  the  word  warrant  is  generally  used.  Any  assertion  of  the 
seller  in  respect  to  the  quality,  soundness,  &,c.,  of  the  property,  if 
intended  by  the  seller,  and  understood  by  the  buyer,  as  a  warranty, 
must  be  considered  as  such,  whether  the  word  warrant  was  made 
use  of  or  not.''  False  assertions,  if  intended  to  operate  on  the 
opinion  of  the  buyer  in  regard  to  the  value  of  the  property,  and  for 
the  purpose  of  driving  a  bargain,  do  not  amount  to  a  warranty ,s 
though  the  seller  may  be  liable  for  the  fraud,  as  heretofore  stated. (2) 

Do  the  words,  which  the  buyer  claims  as  proving  a  warranty, 
fairly  show  that  they  were  intended  and  understood  by  the  parties, 
at  the  time  of  the  sale,  as  a  promise  to  w^arrant?  If  they  do,  then 
they  must  be  so  considered  by  the  justice, 

A  warranty  of  the  soundness  of  a  horse,  or  other  property,  ex- 
tends to  every  kind  of  unsoundness,  known  and  unknown  to  the 
seller.  If,  however,  the  buyer  examines  the  property  at  the  time  of 
the  sale,  and  it  is  perfectly  apparent  that  it  has  some  particular  de- 
fect, which  can  be  discerned  without  requiring  the  exercise  of  any 
particular  skill  in  the  qualities  of  the  property,  as  the  loss  of  the  ear 
or  tail  of  a  horse,  it  will  be  presumed  that  the  parties  did  not  under- 
stand such  defect  as  coming  within  the  warranty.  If,  however,  the 
horse,  or  other  property,  has  a  defect  which  is  not  plain  and  obvious, 
except  to  those  who  are  skilled  in  the  quality  of  the  particular  arti- 

(c)  19   Johns.    Rep.   77;    9   Wend.   331,  per     (e)  19  Johns.  Rep.  290;  3  T.  R.  57;  3  Bibb,  35' 

Savage,  C.  J.  (c)  5  Johns.  Rep.  354;  Esp.  Rep.  572. 

(d;  1  Wend.  424. 

(2)   See  page  317. 


§6,  (D).]  SALES.  439 

cle,  it  cannot  then  be  claimed  by  the  defendant  that  the  defect  was 
too  phiin  and  obvious  to  come  within  the  warranty. 

A  warranty  of  the  soundness  of  a  horse  is  broken,  if  the  animal, 
at  the  time  of  the  sale,  had  any  infirmity  upon  him  which  rendered 
him  less  fit  for  present  service. '*^ 

If  a  person  purchase  a  horse,  or  other  property,  that  is  warranted, 
and  it  afterwards  turn  out  that  the  property  is  not  such  as  it  was 
warranted  to  be,  the  buyer  may,  if  he  please,  keep  the  property, 
and  immediately  bring  an  action  on  the  warranty,  without  tender- 
ing back  the  property,  or  giving  any  notice  to  the  seller  of  the 
breach  of  the  warranty.  The  buyer  will  then  have  a  right  to  re- 
cover the  difference  between  the  value  of  the  property,  such  as  it 
was  warranted  to  be,  and  the  property  such  as  it  actually  was  at  the 
time  of  the  sale. 

If  the  property  has  not  been  changed,  or  injured  by  the  buyer, 
so  that  it  remains  in  the  same  slate  as  when  it  was  sold  to  him,  ex- 
cept so  far  as  it  has  been  aflected  by  the  defect  covered  by  the  war- 
ranty, and  the  seller  knew  at  the  time  of  the  sale  that  his'warranty 
was  false,  the  buyer  may  return,  or  tender  the  property  to  the  sel- 
ler, provided  he  do  it  promptly,  or  as  soon  as  he  discovers  the  de- 
fect, and  then  bring  an  action  and  recover  the  price  he  paid.**  If, 
in  such  a  case,  the  property  is  promptly  tendered  in  the  same  state 
as  when  it  was  sold,  and  the  seller  refuse  to  take  it,  and  the  buyer 
is  afterwards  put  to  expense  in  keeping  it,  he  will  then  be  entitled 
to  recover,  as  well  what  he  paid,  as  the  expense  of  keeping."^  If 
keeping  the  property  is  attended  v>'ith  expense,  or  it  is  of  a  perish- 
able nature,  the  buyer  may,  if  he  choose,  after  tender  and  refusal  by 
the  seller  to  take  it,  sell  it  at  such  price  as  he  can  fairly  get,  and 
then  sue  and  recover  from  the  seller  the  difference  between  tlie  price 
at  which  it  was  sold,  and  the  price  paid.**  In  such  case,  it  will  be 
safest  for  the  buyer  to  give  the  seller  reasonable  notice  that  he  in- 
tends to  sell  the  property.  If  it  cannot  be  proved  that  the  seller  ^ 
knew  of  the  defect  at  the  time  of  the  warranty,  and  there  was  no  ' 
agreement  or  subsequent  consent  on  his  part  to  take  back  the  pro- 
perty, he  will  not  be  bound,  on  tender,  to  take  it  back,  but  the 
buyer  must  keep  the  property  and  sue  on  the  warranty." 

When  the  title  to  a  part  of  the  property  sold  has  entirely  failed, 
so  as  to  defeat  the  object  of  the  purchase,  the  buyer  has  a  right  to 
abandon  the  contract,  by  returning  such  of  the  property  as  the  seller 
owned,  and  may  recover  the  money  paid.  As,  if  I  should  sell  you 
a  pair  of  matched  horses,  for  carriage  use,  and  the  title  to  one  of 
them  should  fail.^  you  may  return  the  other.  But  if  I  should  sell 
you  two  iiorses  that  are  not  matched,  and  the  tide  to  one  should 
fail,  the  object  of  the  purchase  would  not  be  defeated,  and  you 
could  not  abandon  the  contract,  but  could  sue  me  on  my  iinj)lied 
warranty,  and  recover  what  you  paid  me  for  the  latter  horse. 

(a)  4Canipb.  Rop.  2ai.  (c)  12  Wliea.    103;   7    East,   27J;   Dou?.   24; 

(b)  3  Esp.  Kep.  83;  12  VVlica.  183;  28  Eng.  C.  Cowp.  R18. 

L.  Hep  29.  {^)  11   Joluis.  Rnp.  525;   2  Kcni'n  Com.  4T0. 

(c)  3  E»p.  ftl;  1  Ta>int.  5C7.  476. 

(d)  1  Taunt.  567;  15  Eng.  C.  L.  Rep.  129. 


440  SALES.  [Prt.  2,  Titk  32.] 

If  I  sell  a  horso  or  other  property  to  you,  and  warrant  it,  and  you 
sell  it  to  8,  and  are  induced,  by  my  warranty,  to  warrant  it  also, 
and  it  turn  out  that  the  jjropcrty  was  defective,  and  the  warranty 
broken  between  you  and  nic,  and  conseciuently  between  you  and  S, 
I  am  liabk^  for  ail  the  expense  which  yuu  may  incur  in  defending 
an  action  brought  by  S  against  you  for  a  breach  of  the  warranty; 
provided  that  you,  when  sued  ])y  S,  adi>{)tcd  the  precaution  to  give 
me  notice  to  defend  the  action.  Tiiese  expenses  you  may  recover 
in  the  action  brought  by  you  against  me  lor  a  breach  of  my  war- 
ranty, after  the  decision  of  the  action  of  S  against  you."" 

When  by  the  conditions  of  a  sale,  a  liorse  or  other  property  is  to 
be  returned  within  a  certain  time,  if  it  prove  unsound,  or  in  ;my 
way  defective,  it  cannot  be  returned  after  the  expiration  of  that 
time.''  In  such  case,  t!ie  buyer  has  no  remedy  ngainst  tiie  seller, 
unless  there  was  intentional  deception  practiced  by  him,  amount- 
ing to  a  fraud. 

When  there  is  an  express  warranty,  and  an  agreement  by  the 
seller  to  take  back  the  property,  if,  on  trial,  it  shall  be  found  that  it 
has  any  of  the  defects  mentioned  in  the  warranty,  the  buyer  must, 
in  such  case,  return  the  property,  as  soon  as  he  discovers  any  of 
those  defects,  in  order  to  sue  on  the  warranty,  unless  he  has  been 
induced  to  prolong  the  trial  by  some  subsecpient  misrepresentation 
of  the  seller."     In'such  case,  trial  means  a  reasonable  trial.*^ 

In  a  suit  on  a  warranty,  or  for  a  fraud  as  to  (juality,  the  burden 
of  proving,  on  the  trial,  the  defect  in  the  quality  of  the  property, 
falls  upon  the  buyer. "^ 

If  suit  is  brought  by  the  seller  against  the  buyer,  to  recover  the 
purchase  money,  the  defendant  may  set  up  th.e  fraud  or  false  war- 
ranty, so  as  to  prevent  a  recovery  beyond  what  is  equitable  and 
just."* 

(a^  2  Eng.  C.  L  Rep.  54.  (e)  Stat.  685;  8  Cow.  Rep.  31;  13  Johns.  Rep. 

(I))  3  Eep.  271.  302  ;   16  Id.  230;  8  Wcnd.  Kcp.  109;  4  Id.  483  ; 

(c)  2  n.  1!1.  573.  3  Id.  236;  8  Johns.  Rep.  353;   1    Pot.  C.  C.  Rep. 

(li)  2  Taunt.  343.  221.  224.     See  14  Enu.  C.  L.  Rep.  121 ;  22  Id.  122; 

^  17  Id.  373;  2  Kent's  Coin.  (3d  cd.)  474;  1  Mason 

437. 


TITLE  XXXIII. 

SET  OFF.(l) 


SECTION    I.       IN  WHAT  ACTIONS  A  SET  OFF  MAY  BE  ALLOWED. 
11.        WHAT  DEMANDS  MAY  BE  SET  OFF. 


Sec.  I. IN  WHAT  ACTIONS  A  SET  OFF  MAY  BE  ALLOWED. 

It  is  only  where  the  defendant  is  sued  on  a  specialty,(2)  contract, 
bill  of  exchange,  promissory  note,  promise  or  account,  that  he  is 
permitted  to  oiler  in  evidence  a  demand  which  he  may  have  against 
the  plaintifi".(3)  Therefore,  if  a  suit  is  brought  to  recover  damages 
for  a  wrong,  and  not  for  the  breach  of  an  express  or  implied  pro- 
mise, and  the  defendant  has  a  demand  against  the  plaintiff,  he  can- 
not set  it  off  in  such  action. 


Sec.  II. WHAT  DEMANDS  MAY  BE  SET  OFF. 

Any  debt,  contract,  book  account,  or  other  liquidated  demands, 
against  the  plaintiff,  and  due  the  defendant,  may  be  set  off.*(4) 

(a)  Stat.  850,  5L 


(1)  As  to  filing  a  hill  of  the  particulars  of  a  set  off,  &.c.  see  pages  38,  39. 

(2)  Specialty  is  a  contract  or  an  Instrument  under  seal. 

(3)  Slat.  850,  §1.  Tlie  Englisli  statute,  by  its  terms,  allows  a  set  off  in  actions 
only,  in  which  the  plaintiff  sues  for  a  dehl;  and  for  tliis  reason  it  has  been  decided 
in  England,  tliat  tlie  only  actions  in  which  a  set  off  is  allowed,  are  assumpsit, 
debt,  and  covenant  for  tlie  non-puymeid  of  rnonei/,  and  for  which  an  action  of  debt 
or  indebitatus  assumpsit  might  be  sustained;  or  where  a  bond  is  given  conditioned 
for  the  payment  of  money.  2  Burr.  820;  Cuwp.  56,  57;  2  Black.  Hep.  911.  The 
statute  of  this  Slate  includes  all  actions  brouglit  •'  on  any  specialty  or  contract," 
&c.  '!'he  English  statute  cannot  give  a  construction  to  ours,  and  1  perceive  no 
good  reason  wliy  ours  siiould  not  include  the  actions  which  its  broad  terms  ex- 
pressly and  clearly  define. 

(4)  <'.\ny  debt,  contract,  book  account,  ov  other  liquidated  demand:"  These 
are  the  words  of  the  statute;  and  I  am  not  informed  that  the  supreme  court  has 
given  a  construction  to  them.  A  debt  or  book  account  is  a  liquidated  dt-mand; 
but  a  claim  arising  on  a  contract  may  be  as  uncertain  in  amount,  and  as  litr  from 
being  a  liquidated  dernuvd,  as  the  damages  you  would  be  entitled  to  for  a  battery 

.')r. 


442  SET  OFF.  [Prt.  2,  Ttlk  33, 

1.  As,  on  tlie  one  liaial,  u  person  cannot  recover,  but  must  be 
nonsuited,  if  he  conunences  a  suit  before  tiie  debt  for  wliicli  the 
action  is  brouuht  is  tkie;  so  on  the  other,  a  defendant  cannot  set  oli" 
a  claim  which  has  become  due  alter  the  commencement  of  the  suit 
against  him.(l) 

If  the  delendant,  after  the  suit  is  commenced  against  liim,  pro- 
cure an  assignment  or  debt  against  the  plaintitf,  he  cannot  be  allow- 
ed to  bring  it  in  by  way  of  set  olf;*  and  it  is  for  the  delendant  to 
satisfy  the  justice,  either  by  proof  or  circumstances,  that  the  set  oti* 
was  held  by  him  belore  the  commencement  of  the  suit.'' 

When  the  suit  is  by  an  administrator  or  executor  upon  the  claim 
of  the  decedent,  it  is  competent  to  set  oil'  any  debt,  book  account, 
or  other  liquidated  demand,  due  from  the  decedent  to  the  defend- 
ant at  the  time  of  the  decease  of  the  decedent.  Jiut  in  such  suit, 
the  defendant  ca.nnol  set  olfa  debt  assigned  to  him  after  the  decease 
of  the  decedent;  nor  a  debt  which  became  due  and  pajable  after 
tlie  decease  of  the  decedent.*^  Such  demands,  though  good  against 
the  estate,  can  only  look  to  the  general  assets  for  satisfaction.  To 
allow  them  to  be  set  olI'M'ould  change  the  course  of  distribution  of 
the  funds  belonging  to  the  estate. 

2.  In  general  the  set  oil"  must  be  due  from  the  plaintifl";  and  the 
debt  due  the  plaintilf  for  which  the  action  is  brought,  and  the  debt 

(a)  Stat,  850,  $1.  (b)  19  Johns.  Rep.  322.  (c)  6  Oljio  Rep.  35. 


upon  your  person.  It  is  the  opinion  of  some  of  ilie  members  of  the  bar,  however, 
that  ail  uncertain  damag'es  arising-  xipon  any  contract  may  be  set  oB\  but  perhaps 
from  the  words  "other  liquidated  demand,"  the  leg-islature  intended  to  allow  only 
tlie  set  off  of  debts,  accounts,  contracts,  and  demands  that  are  liquidated. 

What  is  a  liquidated  demand  may  be  more  difficult  to  define,  than  to  ascertain 
the  proper  construction  of  the  statute.  In  general,  when  the  defendant  claims  on 
a  contract,  damages  which  are  uncertain  in  amount,  and  not  defined  or  fixed  by 
the  terms  of  the  contract  itself,  but  require  evidence  independent  of  the  terms  of 
the  contract  to  ascertain^their  amount,  they  are  not  liquidated.  Thus:  if  I  hire  your 
horse,  and  neglect  to  take  reasonable  care  of  him,  so  that  he  is  injured,  or  borrow 
your  plough,  and  by  negligence  break  it,  you  would  be  entitled  to  recover  the 
damages  which  )()u  had  sustained  by  the  injury  to  the  hoi-se  or  plough.  Though 
in  all  these  cases  there  is  a  breach  of  an  implied  contract,  yet  the  damages  being 
uncertain,  or  unliquidated,  perhaps  you  could  not  set  them  oft'  in  a  suit  brought 
against  you  by  me.  AVhere,  therefore,  the  amount  rests  in  opinion  only,  and  must 
be  reguiiited  by  the  peculiar  circumstances  of  each  particular  case;  they  are  dam- 
ages which  cannot  be  ascertained  by  computation  or  calculation  —  as,  for  instance, 
for  not  skillfully  amputating  a  limb;  for  carelessly  upsetting  a  stage,  by  which  a 
bone  is  broken.  1  Cowp.  56;  1  JF.  Black.  391;  13  Wend.  139;  "6  T.  R.  488;  4 
Johns.  Chy.  Hep.  287;  6  Cow.  613.  But  if  I  agreed  to  pay  you  by  reason  of  any 
one  of  these  injuries,  or  on  any  other  accoimt,  a  certain  sum  of  money,  the  de- 
mand would  then  be  liquidated,  and  could  consequently  be  set  off.  So,  a  set  off 
may,  in  general,  be  allowed  where  the  contract  is  such,  that  if  there  has  been  a 
breach  of  it  as  complained,  the  amount  of  the  demand  can,  by  the  tern>s  of  the  con- 
tract itself,  independent  of  other  evidence,  and  by  arithmetical  calculation,  be  re- 
duced to  a  certainty,  for  it  is  then  a  liquidated  demand.  Therefore  the  amount 
due  on  a  note,  or  on  a  merchant's  account,  or  for  work  or  the  like,  can  be  set  off. 

(1)  3  T.  R.  1H6;  3  Johns.  Cos.  145.  Some  decisions  have  gone  so  far  as  to 
allow  the  set  off  of  a  debt,  due  and  payable  at  any  time  before  notice  given  in  the 
suit  of  the  set  off.     C  T.  R.  59;  3  Id.  'l88,  note;  Dou^.  106. 


§2.]  SET  OFF.  443 

due  the  defendant  for  which  set  off  is  claimed,  must  be  between  the 
same  persons  and  in  the  same  character. 

The  law  in  relation  to  set  off,  where  the  plaintiff  has  assigned  the 
claim  upon  which  he  sues,  has  already  been  stated  ;(1)  and^also  the 
rules  of  set  off,  as  between  the  several  parties  to  negotiable  instru- 
ments.(2) 

A  debt  due  to  an  executor  or  administrator,  in  right  of  the  dece- 
dent's estate,  cannot  be  set  off  against  a  debt  which  the  executor 
or  administrator  owes  in  his  own  private  right;''  nor  can  a  debt  due 
to  an  executor  or  administrator,  in  his  own  private  right,  be  set  off 
against  a  claim  on  the  decedent's  estate. 

Where  the  plaintiff  is  the  mere  agent  or  trustee  of  a  third  person, 
without  any  beneficial  interest  in  the  cause  of  action,  the  defendant 
may  set  off  a  debt  due  him  from  such  third  person;  as  if  an  auc- 
tioneer sue  me,  in  his  own  name,  for  goods  sold  to  me,  I  may  set  off 
a  debt  due  to  me  from  his  principal  who  owned  the  goods.'' 

Where  a  general  agent  for  the  sale  of  goods,  sells  and  delivers 
goods  in  his  own  name,  not  disclosing  the  name  of  his  principal,  the 
person  contracting  with  him  has  a  right  to  consider  him,  to  all  in- 
tents and  purposes,  as  the  principal;  and  though  the  real  principal 
may  appear,  and  bring  an  action  upon  the  contract,  against  the  pur- 
chaser of  the  goods,  yet  the  purchaser  may  set  off  any  claim  he  may 
have  against  the  agent,  in  answer  to  the  demand  of  the  principal."^ 
But  if  the  purchaser  knew  that  he  was  dealing  with  an  agent,  he 
cannot  avail  himself  of  a  set  off  against  the  agent,  in  an  action  by 
the  principal.*^ 

A  separate  del)t  duo  to  one  of  the  defendants,  cannot  be  set  off 
against  a  joint  debt  due  from  all  the  defendants;  nor  can  a  debt  due 
to  the  defendant,  and  another  or  others,  Jointly^  be  set  off  against  a 
debt  due  from  the  defendant  alone;®  unless  there  was  an  agreement 
between  the  parties,  in  relation  to  their  dealings,  that  such  debts 
might  be  set  off  against  each  other.^  A  debt  due  to  or  from  part- 
ners is  a  joint  debt.  Where  the  plaintiff  owes  a  debt  to  several 
persons  jointly,  one  of  whom  owes  him,  the  latter  may  acquire  the 
right  of  set  off'  against  the  ])laintiff,  by  taking  an  assignment  to  him- 
self alone,  of  the  debt  due  from  the  plaintiff,  before  the  plaintiff's 
suit  is  commenced. ** 

If  business  be  carried  on  in  the  name  of  only  one  person,  who  is 
the  ostensible  proprietor,  and  an  action  be  brought  in  the  name  of 
such  proprietor  and  a  dormant  {)artner,  the  defendant  may  set  off  a 
debt  due  from  the  ostensible  proprietor,  if  he  was  ignorant  of  the 
partnership  at  the  time  he  contracted  such  debt.' 

If  the  defendant  is  sued  for  his  own  debt,  and  he  is  a  surviving 
partner,  or  surviving  joint  creditor,  and  as  such  has  a  claim  against 

(a)  3  Atk.  691.  (e)  3  Johns.  Cliy.  Rftp.573;  5  Crnnch,  34;  10 

(b)  7  Taunt.  243;  13  Johns.  Rep.  9;  2  Cainc's         Johns.  Rep.  251);  11  Id.  70- 
C.  341.  (S)  2  Taunt.  170. 

(c)  7  T.  R.  356,  n.  a.  355.  (h)  17  Johns.  Rep.  330. 

(<1)  2  Caine's  Ca.  Err.  341;  3  Crancb,  193.  (ij  2  Esp.  267;  7  T.  R.  359. 

(1)  See  pages  212,  215.  (2)  Sec  pages  410  to  414. 


444  SET  OFF.  [Prt.  9,  Tit.  33,  §2.] 

the  plaintifl',  he  may  set  it  off;  and,  on  iho  other  hand,  a  doht  due 
tlie  plaintitr,  as  a  sur\  iving  debtor,  may  be  set  olT  against  a  debt 
due  h'om  the  delendant  lu  ihc  plaiiiliil"  in  his  own  right. 

Althotigh  a  joint  debt  cannot,  in  general,  be  set  oil"  against  a  sep- 
arate demand,  nor  a  separate  demand  against  a  joint  debt,  as  we 
have  ah'eady  seen,  yet  there  is,  as  lias  before  been  stated,(l)  a  ma- 
terial dillbrcnce  between  a  joint  debt  and  a  joint  and  several  debt. 
If  the  plaintilfsue  for  a  debt  due  him  alone;  and  he,  with  others, 
owes  the  defendant  a  debt  by  joint  and  several  bond,  note  or  other 
instrument,  the  latter  may  treat  the  debt  as  several,  and  set  it  oflin 
tlie  action.* 

3.  The  set  off  must  be  such  a  one  as  if  sued  upon,  it  would  not 
be  barred  by  the  statute  of  limitations. (2) 

4.  If  the  set  off  does  not  exceed  the  claim  of  the  plaintiff,  judg- 
ment must  be  rendered  in  his  favor  for  the  balance  and  costs. 

If  the  set  off  exceed  the  amount  due  the  plaintiff,  the  defendant 
will  be  entitled  to  a  judgment  for  the  balance,  with  costs.^(3) 

(a)2T.  R.  32.  (b)  Stat.  850,  $1. 


(1)  See  page  15,  n.  (2). 

(2)  As  to  the  general  operation  and  effect  of  this  statute,  see  page  358. 

(3)  See  the  form  of  the  judgment,  pages  106.  121. 


TITLE  XXXIV, 
STUAYS. 


Any  person  holding  land  in  this  State  by  deed,  title  bond,  or  lease 
for  three  years  or  more,  and  being  in  possession  thereof,  may  take 
up  any  strays  running  at  large  within  the  township  where  such 
taker  up  resides.  No  person,  however,  is  allowed  to  take  up  any 
neat  cattle,  sheep,  or  hogs,  after  the  first  day  of  April  and  before  the 
first  day  of  November;  nor  can  any  compensation  or  fees  be  allow- 
ed to  a  person  for  taking  up  any  stray  animal  from  the  range  where 
such  animal  usually  runs  at  large,  or  when  the  owner  of  the  stray 
is  known  to  the  taker  up,  unless  the  animal  be  a  stoned  horse  of 
one  and  a  half  years  old  or  upwards,  running  at  large  out  of  the  in- 
closed ground  of  the  owner  or  keeper  of  such  horse.* 

The  taker  up  of  a  stray  mijst,  within  three  days  after  taking  it 
up,  make  an  accurate  description  of  the  marks,  brands,  size,  color, 
and  supposed  age  of  the  stray,  and  particularly  describe  any  altera- 
tion in  the  marks  or  brands  witliin  his  knowledge.  The  taker  up 
must  leave  a  copy  of  this  description,  within  said  three  days,  with 
the  clerk  of  the  township,  who  must  record  it  and  post  up  a  copy 
thereof  on  the  door  of  his  office,  or  some  other  conspicuous  place 
near  thereto.  The  taker  up  must  also,  (if  the  stray  be  other  kind 
than  hogs  or  sheep,)  transmit  a  copy  of  the  description  of  the  stray, 
above  mentioned,  to  the  clerk  of  the  court  of  common  pleas  of  the 
county  within  five  days  from  the  time  of  taking  it  up,  who  must 
enter  it  on  his  stray  book.  Twenty-five  cents  nmst  be  paid  to  each 
of  said  clerks  by  the  taker  up.^  Their  record  is  subject  to  public 
inspection  at  all  reasonable  times.^ 

The  person  taking  up  an  estray,  must  advertise  the  same  in  wri- 
ting, within  five  days,  at  thi-ee  public  places  within  the  township 
where  the  taker  up  resides;  giving  an  accurate  description  of  the 
marks,  brands,  color,  size,  and  supposed  age  of  such  stray  :(1)  and 

(a)  Stat.  870,  51.  (b)  Id.  lb. 


(1)   Form  of  the  Advertisement  of  a  stray  animal: 

ST11A.Y. 

Taken  up  on  the day  of ,  18 — ,  as  a  stray,  in township,  — 

county,  by  the  subscriber,  who  there  resides,  a  [Ijui/]  Iiorse,  supposed  to  be 

years  old,  liunds  hifjli,   [a  natural  pacer.     IJtrc  alaic  the  hrancls  or  nuirka,  if 

any;  or  if  there  bn  none,  say,  "no  marks  or  brands  perceivable."] 

[iVgncrf]  A 11 . 

\_Dated\ ,  18—. 


446  STRAYS,  [Prt.  2, 

if  no  person  Bhall  claim  and  prove  his  riirht  to  the  stray  within  twen- 
ty days  after  such  advertisement,  the  taker  up  nuistgo  before  a  jus- 
tice of  the  peace  within  the  township,  and  make  oath  where  and 
when  he  foimd  tlie  stray,  and  that  lie  hath  neither  trimmed,  docked, 
nor  altered  the  brand  or  marks  of  the  stray,  or  suffered  the  same  to 
be  done;  or,  if  any  such  alteration  has  been  made  within  his  know- 
ledge, he  must  state  the  same.*(l) 

If  the  taker  up  neglects  either  to  advcrtigc  or  make  the  oath  be- 
fore a  justice  within  the  time  aljove  directed,  he^cannot  afterwards 
proceed  to  have  the  property  appraised  and  sold,  or  otherwise  dis- 
posed of,  under  the  statute.  For,  as  the  law  in  relation  to  strays 
was  made  partly  for  the  benefit  of  the  owner  of  lost  property,  and 
to  enable  him  to  find  it,  the  policy  of  allowing  the  taker  up  who 
neglects  giving  the  re({uired  notice,  to  recover  a  compensation 
for  keeping  the  stray,  may  be  doubted.  It  would  hold  out  a  strong 
inducement  i'oj:  persons  to  try  the  experiment,  whether' the  owner 
would  be  able  to  find  his  property,  if  it  was  not  advertised.  It  is 
believed,  therefore,  that  the  better  rule  to  adopt  in  such  cases,  is, 
not  to  sustain  a  claim  for  compensation  by  the  taker  up,  where  he 
has  failed  to  give  notice  or  make  the  oath  within  the  time  prescribed 
by  law. 

Upon  oath  being  made  by  the  taker  up,  as  above  mentioned,'the 
justice  must  issue  an  order  to  two  respectable  freeholders,  or  house- 
holders, named  therein,  commanding  them  to  forthwith  view  and 
appraise  such  stray,(2)  and  to  return  to  him  upon  oath  or  affirma- 
tion, their  appraisement,  with  a  true  and  accurate  description  of  the 

(a)  Stat.  {,70,  $1. 


(1)  Form  of  the  oath  of  the  taker  up  of  a  stray: 

The  State  of  Ohio,  — ^ —  Township,  ■ County,  ss. 

A B ,  of  said  township,  makes  oath  and  saith:  That  on  the day  of 

,  A.  D.  18 — ,  and  upon  [his  premises,  stating  the  place  where  the  stray  tvas 

taken  up,]  in  said  township,  he  tliere  found  and  took  up  a  stray  [iay]  liorse:  and 
that  he  hath  neither  trimmed,  docked,  nor  altered  the  brands  or  marks  of  said 
atray,  nor  suffered  the  same  to  be  done. 

[Signed]  A B . 

Sworn  to  and  subscribed  before  me,  this day  of A.  D.  18 — . 

G II ,  J.  p.  of township. 

(2)  Form  of  the  order  to  the  appraisers  of  a  stray : 

The  State  of  Ohio,  Township,  County,  ss. 

To  E— — —  F ,  and  J  S ,  freeholders  [or  householders]  of  said 

township — 
You  are  hereby  commanded  forthwith  to  view  and  appraise  a  certain  stray  horse 

taken  up  by,  and  in  possession  of  A R— — ,  of  said  township,   and  return  to 

me  upon  oath,  or  affirmation,  the  value  thereof,  and  a  true  and  accurate  descrip- 
tion of  the  marks,  brands,  size,  color,  and  supposed  age  of  said  stray. 

Given  under  my  hand  this day  of ,  in  the  year  ——. 

G H ,  J.  p.  of  said  township. 


Title  34.]  STRAYS.  44 1 

marks,  brands,  size,  color,  and  su])posed  age  of  the  stray. (1)  The 
taker  up  must  give  notice  to  the  appraisers  of  the  order  being  is- 
sued,* which  should  be  done  by  showing  and  reading  to  them  the 
order  itself. 
The  justice  must  record  the  return  of  the  appraisers  in  his  stray  book 
together  with  the  name  of  the  taker  up  and  appraisers,  and  transmit 
the  appraisement  to  the  clerk  of  the  court  of  common  pleas  within 
fifteen  days.  Under  the  present  law,  it  is  not  necessary  for  the 
justice  to  transmit  an  advertisement  of  the  stray  to  a  printer.  No 
publication  of  that  kind  is  now  required. 

The  taker  up  must  pay  to  the  justice  for  his  services  under  the 
act,  the  sum  of  fifty  cents.  And  if  two  or  more  strays  of  the  same 
species  are  taken  up  by  one  person  at  the  same  time,  they  must  be 
included  in  the  same  entry;  and  in  such  case  the  justice  and  clerk 
can  receive  no  more  fees  than  is  allowed  for  one  of  such  species.** 

Where  strays  are  found  running  at  large  without  any  settle- 
ment,(2)  any  person  may  take  them  up.  The  taker  up  must  forth- 
with go  before  the  nearest  justice  of  the  peace,  and  make  the  oath 
above  directed  in  other  cases,  and  that  he  hath  neither  trimmed, 
docked,  nor  altered  the  brands  or  marks  thereof.  If  the  taker  up  be 
a  freeholder,  or  householder  within  the  county  where  the  justice  re- 
sides, then  the  justice  and  taker  up  must  proceed  in  the  same  manner 
as  has  been  before  directed  in  other  cases;  but  if  it  appear  to  the 
satisfaction  of  the  justice  that  the  taker  up  is  not  a  resident  of  the 
county  and  a  freeholder,  or  a  householder,  he  must  require  him  to 
give  sufficient  security  to  the  justice  for  the  safe  keeping  and  deli- 
very of  such  stray.(3)    On  producing  such  security,  the  justice  must 

(n)  Stat.  871,53.  (b)  Id.  ib.  54. 


(1)  Form  of  the  return  of  the  appraisers,  to  be  annexed  to  the  order: 

In  pursuance  of  the  order  of  G H ,  a  justice  of  the  peace  of town- 
ship,   county,  we,  the  undersigned  have  viewed  a  stray  horse  taken  up  by  A — 

B ,  therein  mentioned,  and  we  do  ap]5raise  the  same  at dollars.     Tlie  fol- 
lowing" is  a  true  and  accurate  description  of  said  stray: — Bay  color,  marked  on  \^&c.y 

or  say,  no  marks;]  branded  on  [SJc,  or,  no  brands,] hands  high,  and  believed 

to  be years  old  last ;  &c. 

[Signed,]  E F , 

Sworn  to  and  subscribed  before  me  this day  of ,  &c. 

G H ,  J.  p.  of  said  townsliip. 

Form  of  oath  to  the  Appraisers. 

You  and  each  of  you,  do  solemnly  swear  in  the  presence  of  Almighty  God,  the 
searcher  of  all  hearts,  tliat  tliis  return  contains  a  just  appraisement,  and  a  true  and 
accurate  description  of  the  stray  therein  referred  to,  as  you  verily  believe. 

(2)  These  are  the  words  of  the  statute.  The  statute  no  doubt  was  intended  to 
apply  to  strays,  that  have  wandered  into  a  part  of  the  country  that  is  uninhabited. 

(:j)  A  bond  in  such  case  may  be  taken  upon  the  stray  book,  in  the  following' 
form : 

Know  all  men  by  these  presents,  that  wc,  .T T ,  F, F ,  and 

J —  S ,  are  held  and  firmly  bound  unto  G —  H ,  a  juctice  of  the  peace,  in 

and  for township,  county,  in  the  sum  of dollars,  for  the  payment 


44 B  vrRAVs.  [Prt.  2, 

make  a  record  thereof  in  his  stray  book,  and  j)ro.-.eed  in  the  same 
manner  as  if  the  stray  had  been  taken  up  l)y  a  freeholder  or  house- 
holder; but  if  the  taker  up  fail  or  rcl'uso  to  give  such  security,  the 
justice  mast  issue  his  warrant,  to  any  constable  -^f  the  county,  to 
take  into  his  charge,  or  to  deliver  the  stray  to  any  freeholder  or 
householder,  who  will  take  charge  of  the  same. (2) 

The  constable  will  be  authorized  to  tak^  the  stray,  under  tin;;, 
warrant,  from  the  possession  of  the  taker  up.  If  he  refuses,  on  de- 
mand, to  deliver  up  the  stray,  the  constable  may  use  force  to  obtain 
possession.  If  the  stray,  however,  has  been  placed  by  the  taker  up 
in  the  hands  of  a  householder  or  freclioldcr  of  the  township,  the 
constable  should  take  from  such  freeholder  or  householder,  a  receipt; 
and  if  he  will  not  give  one,  then  the  constable  should  take  tiie  stray 
from  him.(3) 

The  justice  afterwards  proceeds  in  the  same  manner  as  if  the 
stray  had  been  taken  up  within  a  settlement.* 

(n)  Stat.  072,  iS. 

of  which,  we  jointl_v  and  severally  bind  ourselves.     Seu'ed  with  our  seals,  this 

day  of in  tlie  year . 

The  condition  of  this   oblig'ation  is  such,   that  whereas,  the  said  J T , 

on  the day  of ,  A.  D.  18 — ,  took  up  a  stray horse,  running-  at  large 

without  any  settlement,  and  in  the  county  of ■;  the  said  J T hath  made 

oath  as  required  by  law  before  said  justice,   in  relation  to  said  stray,  and  is  not  a 

freeholder  nor  householder  in  said  county.     Now,  ifsaid  J T^ shall  safely 

keep  and  deliver  up  said  stray,  agreeably  to  the  provisions  of  the  act  in  such  case 
made  and  provided,  theii  the  above  obligation  to  be  void;  otherwise  to  i-emain  in 
full  force  in  law. 

J T ,  [Seal.] 

E F ,  ISetil.] 

J S ,  [Seal.] 

(2)  Form  of  the  Warrant: 

The  State  of  Oliio, Township, County,  ss. 

To  any  constable  of  said  township,  greeting': 

Whereas,  one  J T ,  wlio  is  not  a  freeholder  of  said  countj-,  hath  taken 

up  a  stray  hcrsc,  [{fere  describe  fhe  stray  as  fiillij  as  the  justice  is  able,]  which  was 

running  at  hu-ge,  without  any  settlement,  and  in  this  State,  and  said  J T 

being  rtiled  by  me,  a  justice  of  the   peace   in   and  for  said  township  and  county, 

(before  whom  J T appeared  and  made  tlie  oath  required  by  law  in  the 

premises,)  to  give  sulTicient  security  for  the  safe  keeping-  and  delivery  of  said 
stray,  agreeably  to  the  provisions  of  the  act  in  such  case  made  and  provided,  and 
hath  failed  so  to  do:  You  are  therefore  commanded  to  take  into  3'our  charge  the 
said  stray,  or  deliver  tlie  same  to  some  freeholder  or  householder  residing  in  said 
township,  who  will  take  charge  of  the  same;  and  for  so  doing  this  shall  be  your 
warrant. 

Given  under  my  hand  and  seal  tliis dav  of ,  in  tlie  year •. 

C H ■  J.  p.  [Seal.] 

(3)  The  return  of  the  warrant  may  be  as  follows: 

lilaj/  G,  184G. — [  executed  this  writ  by  taking  into  my  charge,  the  str.ay  within 
named.  [Or  .■sa//,]  I  executed  this  writ  by  deliveriiig  to  A — —  B ,  a  house- 
holder, [or  freeholder,]  of  said  township,  the  stray  within  named,  as  will  appear 

by  his  receipt  hereon  indorsed.     Fucs . 

1 J ,  Constable. 

May  4,  1846.— Received  of  I .1 ,  constable,  the  stray ,  within 

nanted,  which  I  agree  to  keep,  deliver,  &.C.,  as  the  luwin  such  case  provides. 

A B . 


Title  34.]  STRAYS.  449 

If  a  person  not  qualified  by  the  nature  of  his  estate  in  lands,  or 
by  the  place  where  the  stray  is  running  at  large,  to  take  up  a  stray, 
shall,  notwithstanding,  take  up  a  stray,  any  freeholder  of  the  town- 
ship may  make  complaint  to  a  justice,  who  must  issue  his  warrant 
for  the  removal  of  such  stray  from  the  possession  of  the  taker  up, 
and  for  the  delivery  of  the  same  into  the  custody  of  any  resident  of 
the  township,  having  the  qualifications  mentioned  in  the  first  para- 
graph of  this  Title. (1)  If  no  such  qualified  resident  of  the  township 
will  receive  the  stray,  and  proceed  under  the  statute  as  a  taker  up, 
the  constable  may  sutler  the  stray  to  go  at  large;  subject,  however, 
to  be  taken  up  by  any  person  legally  qualified,  at  any  subsequent 
time.* 

Tlie  owner  of  a  stray,  on  making  satisfactory  proof  of  his  right 
thereto,  before  any  justice  of  the  township,  within  six  months  after 
the  same  was  taken  up,  is  entitled  to  demand  and  receive  the  stray, 
with  increase,  if  any.*"  The  qwner,  howevei*,  must  first  pay  as  a 
reward  to  the  taker  up,  for  each  horse  kind,  the  sum  of  one  dollar; 
for  every  head  of  neat  cattle  fifty  cents;  for  every  sheep,  hog,  or 
goat,  above  six  months  old,  twelve  and  a  cents;  together  with  the 
legal  fees  paid  by  the  taker  up,  and  reasonable  charges  for  keeping 
the  stray.  If  the  taker  up  and  owner  disagree  upon  the  sum  to  be 
paid  for  keeping  a  stray,  either  party  may  apply  to  a  justice  of  the 
peace  within  the  township,  to  nominate  three  disinterested  freehol- 
ders,(2)  whose  duty  it  is  to  make  such  allowance  for  keeping  such 

(a)  Stat.  871,  $5.  (b)  Id.  ib. -52. 


(1)  Form  of  the  warrant: 

The  State  of  Ohio, Township, County,  ss. 

To  any  constable  of  said  township,  greeting: 

Wliereas,  complaint  has  been  made  to  me,  G H ,  a  justice  of  the  peace 

of  said  township,  by  A B ,  a  freeholder  thereof,  that  J T ,  who 

is  not  authorized  or  qtudified  by  law  to  take  up  a  stray,  hath  unlawfully  taken  up 
a  {here  describe  the  yfrui/  as  full y  as  possible,]  being-  a  stray  in  said  township;  and  I 
being-  satisfied  of  the  truth  of  the  premises  do  therefore,  in  the  name  of  the  State 

of  Ohio,  hereby  command  you  to  take  said  stray  from  the  possession  of  said  J 

T and  deliver  tiie  same  into  the  custody  of  a  resident  of  the  township,  who 

holds  land  in  this  State,  by  deed,  title  bond,  or  lease  for  three  years,  or  more,  and 
is  in  possession  thereof:  And  for  so  doing  this  shall  be  your  warrant. 

Given  under  my  hand  and  seal,  tliis dav  of ,  in  the  year ■. 

G II ,  J.  P.  iSeaI.'\ 

(2)  Form  of  nomination  of  freeholders,  to  estimate  the  allowance  for  keeping- 
strays  : 

To  A B ,  C D ,  and  E F ,  freelioldcrs  of town- 
ship,   county. 

Gbntlkmev  —  You  are  hereby  nominated  by  me  to  iiupure  and  certify  to  mc, 
under  o:»lli  or  aftirmatlon,  tlie  allowance  which  you  believe  just  and  reasonable  for 
keeping  {here  describe  the  stray  or  strays,]  stray  taken  up  by  A B ,  on  the 

57 


450  sTKAVs.  [Prf.  2, 

strays,  as  to  theui  shall  seem  just,  and  forthwith  certify  tho  same, 
under  their  hands,  to  such  justice,  upon  oath  or  airirniation.(l) 

If  the  owner  of  a  stray  fail  or  refuse  to  pay  tlie  allowance  made 
by  the  freeholders,  (together  with  the  fees  above  mentioned,)  with- 
in forty  days  thereafter,  the  taker  up  niay  deliver  the  stray  to  the 
constable  of  the  township,  who,  after  giving  ten  days  notice  by  ad- 
vertisement at  three  of  the  most  public  places  in  the  township,  of 
the  time  and  place  of  sale,  may  proceed  to  sell  the  same  for  ready 
money  to  the  highest  bidder,  to  satisfy  the  costs  and  charges  above 
mentioned.  The  constable,  after  paying  to  the  taker  up  the  fees 
aw'arded  and  the  proper  charges,  and  deducting  one  dollar  for  his 
own  fees,  must  pay  the  remainder  to  the  owner  of  the  stray.* 

When  the  appraised  value  of  a  stray,  or  strays  of  the  same  spe- 
cies, taken  up  as  above  mentioned,  does  not  exceed  seven^  dollars 
for  the  whole  number  taken  up  and  reported  at  any  one  time,  and 
no  person  shall  appear  within  six  months  and  prove  his  right  there- 
to, the  right  to  such  stray  or  sti'ays  vests  in  the  taker  up. 

If  the  valuation  exceed  seven  dollars,  it  may  be  sold  in  six  months 
after  it  was  taken  up.''  For  this  purpose  the  taker  up  must  apply 
to  the  justice  to  whom  the  return  was  made  of  the  appraisement, 
&c.,  for  a  copy  of  the  return  from  the  stray  book,  which  the  taker 
up  must  forthwith  deliver  to  a  constable  of  the  township,  who  must 
immediately  advertise  the  stray  for  sale,  at  three  public  places 
within  the  township,  mentioning  the  time  and  place  of  sale,  which 
must  be  at  least  ten  days  from  the  time  of  advertising.  The  sale 
must  be  made  at  some  public  place  in  the  township,  if  of  the  horse 

(a)  Stat.  872,  $7.  (b)  Id  877,  §23.  (c)  Id.  873,  $8. 


day  of ,  A.  D.  18 — ,  and  claimed  by  C D ,  the  parties  not  being 

able  to  agree  as  to  said  allowance. 

G H ,  J.  p.  of township. 

May  4,  1846. 

The  taker  up,  or  owner,  at  whose  instance  the  freeholders  are  nominated,  should 
give  notice  to  the  opposite  party  of  the  inquiry,  that  he  may  be  present. 

(1)  Form  of  the  return  by  freeholders,  of  an  allowance  for  keeping-  strays. 

We,  the  undersigned,  do  hereby  certify,  under  oath,  tliat dollars,  —  cents, 

is  a  just  and  reasonable  allowance  to  A B ,  for  keeping  the  strays  in  the 

annexed  nomination  mentioned. 

[Signed,}  A B 

C D . 

18 — .  E F . 

Sworn  to  and  subscribed,  this day  of ,  A.  D.  18 — . 

G H ,  J.  p. 

Thig  return  must  be  attached  to  the  nomination,  the  form  of  which  is  given 
above. 


Title  34.]  STRAYS.  451 

kind,  but  if  any  other  kind  of  stray,  the  same  must  be  sold  at  the 
residence  of  the  taker  up,  between  the  hours  of  ten  o'clock  in  the 
forenoon  and  four  in  the  afternoon. (1)  At  the  time  and  place  of 
sale  the  taker  up  must  deliver  the  stray  to  the  constable,  and  take 
his  receipt  therefor,  and  transmit  the  same  to  the  township  trea- 
surer.^ The  constable  sells  the  property  to  the  highest  bidder,  on 
a  credit  of  nine  months  for  the  residue  of  the  purchase  money  after 
paying  his  own  fee  of  one  dollar,  and  the  expenses  of  taking  up, 
posting  and  keeping,  which  expense  must  be  ascertained  in  the 
manner  before  directed.  After  paying  the  above  fees  and  expenses, 
the  constable  must  take  from  the  purchaser,  for  the  residue  of  the  pur- 
chase money,  his  obligation  with  one  or  more  suflicient  sureties,(2) 
payable  to  the  treasurer  of  the  tow^nship  or  his  successor  in  office, 
and  deliver  the  same  to  the  treasurer,  for  the  use  of  the  township  in 
which  the  stray  or  strays  were  taken  up,  taking  duplicate  receipts 
for  the  same,  one  of  which  the  constable  must  file  with  the  town- 
ship clerk,  together  with  a  certificate  stating  to  whom  tlie  property 
was  sold  and  the  amount  for  which  it  was  sold." 

The  treasurer  to  whom  the  bond  is  given  is  authorized  to  sue  for, 
recover,  and  receive  its  amount.  If,  however,  the  owner  of  the 
property  sold,  within  two  years,  claim  and  prove  his  right  thereto, 
to  the  satisfaction  of  a  justice  of  the  peace  of  the  proper  township, 
such  justice  must  issue  his  order  to  the  treasurer,  requiring  him  to 
assign  over  the  obligation,  or  any  judgment  thereon,  to  the  claimant 
for  his  use,  or  pay  over  the  money  if  paid  into  the  treasury  on  such 
bond.     The  treasurer  must  comply  with  this  order.^ 

(d)  Stat.  873,  $8.  (e)  Id.  ib.  $9.  (g)  Id.  ib.  flO. 


(1)  The  form  of  the  ad.ertisement  can  be  readily  made  out  with  the  proper  al- 
terations, from  the  form  of  the  advertisement  of  the  sale  of  property,  on  execu- 
tion, for  which  see  page  15.5,  n.  (8). 

(2)  The  form  of  the  obligation  may  be  thus: 

Know  all  men  by  these   presents,    that  we,  J P ,  A B ,  and 

C D ,  are  held  and  bound  unto  the  treasurer  of township,   in  the 

county  of ,  Ohio,  A T ,  and  his  successors  in  office,   in  the  6um  of 

,  \Jierc  hiserf  double  the  amount  to  he  paid,']  'for  the  payment  of  which  we 

jointly  and  scvcrallv  bind  ourselves.     Sealed  witli  our  seals  and  dated  this 

day  of ,  A.  D.'l8— . 

The  condition  of  tiie  above  obligation  is  such,  that,  whereas,  said  J P 

this  day  purcliased  at  constable's  sale  a  certain  stray  [horse  taken  up  by  G 

II ,]  for  which  a  credit  is  given  for  the  sum  hereafter  mentioned.     Now,  if 

the  said  J P shall  pay  to  the  said  treasurer,  or  his  successors  in  office, 

the  sum  of dollars,  nine  months  from  the  above  date,  then  the  above  obliga- 
tion to  be  void,  otherwise  to  be  and  remain  in  full  force  in  law. 

J P ,  [Seal] 

A B ,  [Seal] 

C D ,  [Seal] 


462  6THAYS.  [Prt.  2, 

If  a  person  taking  up  a  stray,  sell  the  snnio,  abuse,  or  suller  it  to 
be  abused,  eitber  by  workini^,  riding,  neglecting  to  feed,  or  in  any 
other  manner,  so  tbat  sucb  stray,  in  consecjucnce  thereof,  die,  or  be 
lessened  in  value;  or  take  or  cause  the  stray  to  be  taken  out  of  the 
township  more  than  two  days  at  any  one  time,  or  suller  the  stray 
to  esca|)C  by  his  neglect;  or  if  any  jierson  knowingly  purchase  a 
stray,  contrary  to  the  provisions  of  the  statute;  the  person  so  of- 
fending is  liable  to  the  action  of  the  party  injured,  or  the  trustees 
of  the  townshij),  as  the  case  may  be,  and  upon  conviction  must  pay 
the  full  amount  of  damages  sustained,  and  the  costs  of  suit. 

If  the  person  who  takes  up  a  horse,  mare,  or  gelding,  in  any  man- 
ner works  or  uses  it,  he  is  debarred  from  all  compensation  for  keep- 
ing such  stray.*  The  constable,  however,  who  sells  the  stray,  has 
no  right  to  inquire  whether  the  taker  up  has  forfeited  his  right  to 
such  compensation,  or  to  withhold  jiayment  on  account  of  his  opin- 
ion upon  that  subject.^  The  ([uestion  of  forfeiture  must  first  be  set- 
tled by  a  suit  and  judgment. 

If  a  stoned  horse  of  one  and  a  half  years  old  or  upwards,  is  found 
running  at  large  out  of  the  inclosed  ground  of  his  owner,  or  keeper, 
any  person  may  take  up  the  horse,  and  forthwith  give  notice  to  the 
owner  or  keeper,  if  known;  and  if  the  owner  or  keeper  does  not 
appear  within  three  days  after  the  notice,  and  pay  the  taker  up  two 
dollars  for  his  trouble,  the  latter  may  advertise  the  horse,  and  pro- 
ceed in  the  same  manner,  as  has  been  above  directed  in  case  of  stray 
horses.  The  taker  up  may  also,  at  the  expiration  of  twenty  days 
from  the  time  of  advertising,  geld,  or  procure  the  iiorsc  to  be  geld- 
ed, at  the  risk  and  expense  of  the  owner.*^ 


Any  person  finding  either  a  boat,  \vater  craft,  raft,  or  piece  of  a 
raft,  or  other  valuable  property,  gone,  or  going  adrift,  within  this 
State,  or  upon  any  of  the  waters  adjoining  thereto,  may  take  it  up 
and  secure  it.(l)  If  no  person  claims  and  proves  his  right  to  it  with- 
in thirty  days  thereafter,  the  taker  up  must  cause  it  to  be  viewed  by- 
two  freeholders,  or  householders,  of  the  township,  who  afterwards 
give  a  description  thereof  in  writing,  together  with  an  estimate  of 
its  value,  and  certify  the  same  under  their  hands.  This  certificate 
must  be  delivered  by  the  taker  up,  within  five  days  after  it  is  made 
out,  to  some  justice  of  the  peace  of  the  township^,  who  makes  a 
record  of  it  in  his  stray  book.  If  the  taker  up  is  not  a  freeholder 
or  householder  within  the  county,  the  justice,  if  he  deem  it  neces- 

(B)  Stat.  373,  ^11.  (b)  Wright's  Rep.  714.  (H)  Stat.  874,  $12. 

(r)  Id.  lb.  $11. 


(1)  As  to  tlie  appointment,  powers,  and  duties  of  Wreck-m.isters,  see  Stat,  1008. 


Title  34.J  sTRATs,  453 

sary,  may  require  him  to  give  security,  as  in  case  of  stray  animals 
taken  up  by  such  a  person. (1)  If  the  taker  up  fails  to  give  security 
when  required,  the  justice  may  take  the  boat  or  other  property  into 
his  own  possession,  or  deliver  it  to  any  freeholder  of  the  township, 
who  must  take  charge  thereof  Within  fifteen  days  from  the  time 
the  above  mentioned  certificate  of  the  freeholders,  or  householders, 
is  received  by  the  justice,  he  must  transmit  twenty-five  cents, 
(which  the  taker  up  must  deposit,)  together  with  said  certificate,  to 
the  clerk  of  the  court  of  common  pleas.  The  subsequent  proceed- 
ings are  the  same  as  where  stray  animals  are  taken  up,  except  as 
hereinafter  mentioned.*  The  owner  of  the  boat,  &c.,  or  other  pro- 
perty, is  entitled  thereto,  on  proving  his  right  to  the  same  within 
the  time  hereafter  mentioned,  and  paying  to  the  taker  up  for  each 
flat,  or  keel  boat,  for  each  scow%  or  lighter,  for  each  Kentucky,  or 
Orleans  boat,  and  for  each  skiff,  pirogue,  canoe,  or  other  valuable 
property,  such  reward  or  compensation  as  may  be  deemed  reason- 
able, at  the  discretion  of  the  justice,  together  with  legal  fees.'' 

If  the  appraised  value  of  the  boat,  &c.,  or  other  property,  does 
not  exceed  five  dollars,  it  vests  in  the  taker  up,  and  is  his  property, 
unless  claimed  and  proved  by  the  owner  to  be  his,  within  two 
months  after  it  was  taken  up.  If  its  value  exceed  five  dollars,  and 
the  owner  does  not  claim  and  prove  his  right  within  said  two 
months,  the  taker  up  must  deliver  the  property  to  a  constable  of 
the  township,  and  take  his  receipt  therefor.  The  constable  must 
advertise,  sell,  and  pay  over  the  ])roceeds  of  the  sale,  in  the  same 
manner,  as  has  been  before  directed,(2)  when  stray  animals  are 
sold.  So,  the  owner  may,  in  like  manner,  prove  and  claim  from 
the  tovv'nship  treasury,  the  proceeds  of  such  sale.  If,  however,  the 
appraised  value  of  any  boat  or  craft  taken  up  upon  the  shores  of 
Lake  Erie,  does  not  exceed  eight  dollars,  and  no  person  appears 
and  proves  his  right  thereto  within  the  time  above  mentioned,  the- 
property  in  the  boat  or  craft  vests  in  the  taker  up," 


Freeholders  and  householders  who  perform  any  duties  in  relation 
to  strays,  &c.,  as  above  mentioned,  are  entitled  to  receive  the  sum 
of  fifty  cents,  for  each  day  actually  employed,  to  be  paid  by  tho 
person  taking  up  a  stray,  fec.*^ 

When  a  new.  township  is  set  off.  within  the  bounds  of  which  there 
shall  be  a  stray  which  ought  to  be  sold,  the  justice  to  whom  the 
appraisement  of  such  stray  was  returned,  or  his  successor  in  ofiice, 
must  furnish  a  copy  of  the  appraisement  to  the  constable,  whose 
duty  it  would  iiave  been  to  sell  the  stray,  had  not  the  new  town- 
ship ])een  set  off     The  constal)lc  who  is  furnished  with  such  copy 

(a)  Stat.  874,  $13.  (r)  Id.  ib.  $15. 

(b)  Id.  875,  $14.  (d)  Id.  87«,  $21. 


[1]  See  pages  4-17,  448.  [2]  See  pa^CB  450,  461. 


454  STRAYS.  [Prt.  2,  Title  S4.] 

must  advertise  and  sell  in  the  manner  heretofore  directed;  and  the 
proceeds,  after  payini^  incidental  expenses,  must  be  paid  into  the 
treasury  of  the  township  set  oil",  for  the  use  of  such  township.® 

It  is  the  duty  of  every  justice  to  keep  a  hook,  of  suflicicnt  size, 
for  the  puri)ose  of  recording  all  strays,  the  a])praisement  of  which 
shall  be  returned  to  his  office. 

When  his  office  becomes  vacant  by  his  term  expiring,  resigna- 
tion, or  otherwise,  he,  or  his  legal  representative,  must  deliver  the 
stray  book  to  the  clerk  of  the  township,  who  delivers  it  to  the  suc- 
cessor of  such  justice;  and  the  latter  may  furnish  copies  of  all  ap- 
praisements, the  same  as  if  he  had  always  been  in  office.'' 

If  any  person  neglects  to  perform  any  of  the  duties  herein  above 
mentioned,  and  directed  by  the  statute  above  referred  to,  or  does 
anything  contrar}^  thereto,  such  person  forfeits  and  must  pay  a  sum 
not  exceeding  one  hundred  dollars,  nor  less  than  one  dollar;  to  be 
recovered  by  an  action  of  debt,  before  any  court  having  cognizance 
thereof;  and  is  moreover  liable  to  the  party  injured.  It  is  the  duty 
of  the  township  treasurer  to  sue  for,  in  the  name  of  the  trustees  of 
the  township,  collect  and  pay  over,  for  the  use  of  the  township,  all 
moneys  arising  by  any  forfeiture  above  mentioned.^ 

(C)  Stat.  876,  ^17.  (i)  Id.  ib.  «19,  20. 

(h;  Id.  ib.  5,18. 


TITLE  XXXV. 
TENDER. 


SECTION    I.       IN  WHAT  CASES,  AND  AT  WHAT  TIME,  A  TENDER  MAY  BE  MADE 
WITH  EFFECT. 
II.       BY  WHOM,  AND  TO  AVHOM,  TENDER  MUST  BE  MADE. 
ill.     IN   WHAT  KIND  OF  MONEY  A  TENDER  SHOULD  BE  MADE. 

IV.  WHAT  AMOUNT  MUST  BE  TENDERED. 

V.  IN  AVHAT  CASES  THE  MONEY  MUST  BE  ACTUALLY  PRODUCED. 

VI.  A  TENDER  MUST  BE  UNCONDITIONAL. 

VII.  OF  THE  EFFECT  OF  A  TENDER;  AND  HEREIN, 

(A)  Its  general  effect 

(B)  When  lite  contract  is  for  the  payment  of  money ^ 

and  a  tender  is  made  before  the  commencement 
of  the  siiit^  icith  forjns  of  docket  entries. 

(C)  When  the  contract  is  for  the  payment  of  a  sum 

of  money  certain.,  and  a  tender  is  made  after 

suit  is  brought.,  icith  forms  of  docket  entries. 
(Z>)   When  the  claim  is  for  damages  arising  from  a 

negligent  or  involuntary  trespass  upon  lands., 

with  forms  of  docket  entries. 
{E)   WJien  the  suit  is  on  a  contract  for  icork  aiid  labor., 

or  for  the  payment  of  property.,  iritli  forms  of 

docket  entries. 
(F)  When  the  suit  is  brought  upon  other  contracts., 

or  for  other  wrongs    or  injuries    than  those 

herein  before  ?nentioned.,  with  fontis  of  docket 

entries. 


Sec  I. IN  WHAT  CASES,  AND  AT  WHAT  TIME,  A  TENDER  MAY  BE  MADE 

WITH  EFFECT.(l) 

Where  the  promise  or  contract  is  for  the  payment  of  money,  or 
suit  is  brouglit  for  a  neuligent  or  invokmtary  trespass  to  land,  a  ten- 
der may  be  made  at  any  time  before  suit  is  brought.*  Where  suit 
is  brouglit  for  other  wrongs  or  injuries,  or  u[)on  other  contracts,  a 
tender  may  be  made  in  open  court,  of  the  amount  of  damages  which 

Stat.  932,  $1,  and  662,^69. 


(I)   Sec  also  page  429. 


456  TENDER.  [Prt.  3,  Title  35, 

the  plaintiff  admits  to  be  due,  with  costs ;="  and  in  such  cases  a  ten- 
der of  the  damages,  before  suit  is  brought,  will  not,  in  general,  have 
any  ctlect  on  the  rights  of  the  parties.** 

A  tender  upon  a  contract  for  work  and  labor,  must  be  made  at 
the  time  and  place  designated  in  the  contract.  If  not  so  done,  it 
will  not  be  ellectual,  so  as  to  subject  the  plaintiff  to  costs  from  the 
commencement  of  the  suit,  nor  entitle  the  defendant  to  his  elec- 
tion, w  hether  he  will  perform  the  contract  or  not.*"  But  if  no  legal 
tender  is  made  l)efore  the  commencement  of  the  suit,  the  defendant 
may  after\\'ards  bring  into  court  the  amount  of  damages  ^yhich  he 
admits  to  be  due,  and  costs."* 

If  money  is  to  be  paid,  or  property  delivered,  or  work  is  to  bo 
done  '■•on  or  before''  a  particular  day,  or  ^'on"'  a  particular  day,  a 
tender  of  performance  before  the  day  specified,  will  not,  in  general, 
be  good,  unless  accepted.* 

if  a  party  contract  to  do  any  thing,  (as  to  paint  a  house.)  on  de- 
mand or  on  notice,  he  will  be  entitled  to  a  reasonable  time,  in  which 
to  do  the  thing,  after  a  demand  made,  or  notice  given.s 

If,  after  thecontract  is  made,  it  be  agreed  that  the  thing  shall  be 
delivered  and  accepted  on  another  day  than  the  one  stipulated  in 
the  contract,  a  tender  on  that  day  will  be  good.*" 

So,  if  a  party  to  a  contract  be  ready  to  deliver  the  thing  con- 
tracted to  be  delivered,  on  the  day  stipulated,  and  the  delivery  or  a 
tender  thereof  on  that  day  be  prevented,  by  any  contrivance  or 
evasion  of  the  other  party,  it  will  be  equivalent  to  a  tender.' 


Sec.  II. BY  AVIIOM,  AND  TO  AVHOM,  TENDER  MUST  BE  MALE. 

The  tender  need  not  be  made  by  the  debtor  iiimself;  it  is  sufli- 
cient  if  made  by  his  agent;  and  a  tender  by  an  agent,  at  his  own 
risk,  of  more  than  the  money  given  to  him  by  his  principal,  is  good 
for  the  amount  tendered.'' 

A  tender  to  a  person  authorized  by  the  creditor  to  receive  money 
for  him,  is  sutTicient.' 

A  tender  to  the  attorney,  who  has  the  claim  in  his  hands  for  col- 
lection, is  a  good  tender  to  the  principal."* 

A  tender  to  one  of  several  partners,  or  joint  creditors,  is  sufficient." 


Sec.  III. IN  WHAT  KIND  OF  MONEY  A  TENDER  SHOULD  BE  MADE. 

The  laws  of  the  United  States  point  out  in  what  coin  a  legal 
tender  may  be  made.     These  are,  the  gold  and  silver  coin  of  the 

(a)  Stat.  G60,  $62.  (li)  12  Mass.  Rep.  277- 

(b)  2  Burr.  1170;  2  Bla.  Uep.  837.  (i)  Id.  ih. 

(c)  Stat.  932,  $1.  (k)  2  M.  and  Sel.  86. 

(d)  Id.  660,  $26.  (1)   1  Campb.  477;  1  Eng.  C.  h.  Rep.  114. 

(e)  15  Petcrsd.  Ab-  22,  23;  12  MoJ.  421;  17  (m)  10  Eng.  C.  L.  Rep.  271. 

Mass.  Rep.  247.  (n)  3  T.  R.  683. 

(g)  12  Mass.  Rep.  121. 


§2,  3,  4,  5.]  TExNDER.  457 

United  States,'^  the  gold  coins  of  Great  Britain,  Portugal,  Brazil, 
France,  Spain,  Mexico,  and  Columbia.''  The  silver  dollars  of  Mex- 
ico, Peru,  Chili,  and  Central  America,  and  those  restamped  in  Brazil, 
and  the  five  franc  pieces  of  France.*^ 

Cents  and  bank  notes  are  not  a  legal  tender.     But  they  are  a  leo-al 
tender,  unless  objected  to,  at  the  time,  on  that  account.^ 


Sec.    IV. WHAT  AMOUNT  MUST  BE  TENDERED. 

A  tender  of  less  than  the  amount  due,  is  the  same  as  if  no  tender 
had  been  made.  If  a  person  tenders  more  than  he  ought  to  pay,  it 
is  good;  for  the  other  ought  to  accept  so  much  as  is  due  to  him.® 
But  it  seems  that  such  a  tender  is  only  good  where  it  is  made  in 
moneys  numbered,  so  that  the  creditor  may  take  what  is  due  to  him. 
Therefore,  a  tender  of  a  fifty  dollar  bill,  from  which  the  creditor  is 
desired  to  take  two  dollars,  and  he  refuses  to  do  it,  is  not  good.s 
But  where  a  greater  sum  is  tendered  in  moneys  not  numbered  than 
the  amount  due,  and  the  ci'editor  refuses  to  receive  it,  on  the  ground 
that  the  amount  is  not  sufficient,  or  other  cause,  and  not  on  account 
of  the  form  of  the  tender,  the  tender  is,  it  seems,  good.'' 

In  general,  if  money  is  to  be  paid  by  reason  of  a  contract,  the 
terms  shall  be  miderstood  and  accepted,  according  to  their  import 
where  it  is  to  be  received;  that  is,  it  shall  be  paid  in  currency  there; 
and  therefore,  if  a  contract  be  made  in  Cincinnati  to  pay  a  given  sum 
of  money,  as  £lOO  at  London,  the  contract  must  be  performed  by 
a  tender  of  £lOO  English  currency.' 


Sec.  V. IN  WHAT  cases  THE  MONEY  MUST  BE  ACTUALLY  PRODUCED. 

In  general,  the  money  should  be  actually  produced  at  the  time  of 
the  tender;  but  it  is  unnecessary  to  produce  it,  if  the  creditor  dis- 
pense with  such  production,  or  do  anything  equivalent  thereto,  and 
the  debtor  have  the  money  at  the  time  ready  to  produce.''  Thus: 
the  agent  of  the  defendant  met  the  plaintiff"  in  the  street,  and  told 
him  he  had  come  to  settle  the  business  between  the  defendant  and 
him,  and  that  he  was  desired  by  the  defendant  to  offer  him  twenty- 
five  dollars;  the  plaintifl\said  he  would  not  take  it;  the  agent  then 
said  that  he  would  give  him  the  other  two  dollars  out  of  his  own 
pocket,  and  run  the  risk  of  being  repaid.  He  then  pulled  out  his 
pocket-hook,  and  told  the  plaintiff,  that  if  he  would  go  into  a  neigh- 
boring public  house  he  would  pay  him;  but  the  plaintilf  said  he 
would  not  take  it.  This  tender  was  held  to  be  good,  as  the  ])laintiff' 
dispensed  with  the  production  of  the  money.' 

(a)  Slory'a  L.  U.  S.  231,  $16.  (e)  .1  Co.  1  lo;  2  Sira.  916. 

(b)  Laws  U.  S.  1  Suss.  23ii  Cong.  65,$1.  (Ii)  5  Eiij;.  V.  L.  Kcp.  4!t3;  3  T.  R.  683. 

(c)  Id.  ib.36,  $1.  (i  I  2  «■  ""d  A.  301;  2  I'.  Ww-,.  8<<.  696. 

(<1)  3  T.  R.  521;  Esp.267;  7  Johns-.  Hop.  476.       (k)  10  Kast,   1(»1;  3  T.  K.  684;  27  Enj;.  C.  L. 
(g)  3  Campb.  70;  6  Taunt.  336;  2  Eep.  710;  Kep.  378. 

16  Eng.  C.  L.  Rep.  87.  [\  )  2  .M.  and  Scl.  86;  12  Eng.C.  L.  Rc-p.  35. 

58 


458  TENDER.  [Prt.  2,  Title  35, 

A  demand  of  more  than  is  due  will  not  excuse  an  actual  tender 
of  what  is  due. 

A  mere  otler  to  pny,  without  having  the  money  at  the  time  ready 
to  produce,  is  not  a  tender,  although  the  plaintiff  refuse  to  receive  it.' 

Sec.   VI. A  TENDER  MUST  BE  UNCONDITrONAL. 

The  offer  of  money  must  he  without  any  qualification,  or  condi- 
tion. Therefore,  where  the  defendant  tendered  a  sum  of  money, 
and  at  the  same  time  delivered  a  certain  claim  upon  the  plaintiff, 
and  the  plaintiff  did  not  take  up  the  money  or  paper,  but  simply 
said,  '•'■You  must  go  to  my  attorney,"'  the  tender  was  held  insuffi- 
cient.^ So,  a  person  making  a  tender,  cannot  insist  on  a  receipt  in 
full  of  all  demands;  but  he  must  rely  on  his  tender,  and  upon  proof 
at  the  trial,  that  no  more  was  duc.*^ 

Sec.  VII. —  OF  the  effect  of  a  tender. 

(A)  Its  general  effect. 

A  tender  and  refusal  does  not  amount  to  an  absolute  discharge 
of  the  party  making  the  tender,  from  all  liability  on  the  contract. 
In  the  case  of  a  tender  of  money,  it  in  I'^neral  only  discharges  the 
subsequent  interest  and  costs;  and  in  the  case  of  goods,  it  in  gener- 
al only  exonerates  the  party  from  responsibility  for  their  safe  keep- 
ing; but  as  long  as  he  continues  in  possession  of  the  goods,  he  will 
be  bound  to  deliver  them  on  demand.** 

If,  after  a  tender,  the  party  to  w  hom  the  tender  is  made  conclude 
to  accept  the  amount  tendered,  he  will  be  entitled  to  it;  and  if,  on 
demand  of  the  amount  tendered,  the  party  who  made  the  tender, 
neglect  or  refuse  to  pay  it.  he  destroys  the  effect  of  ihe  lender,  and 
stands  in  no  better  situation  than  if  no  tender  had  ever  been  made. 

A  demand  of  the  debt,  to  do  away  the  effect  of  a  tender,  must 
be  by  some  one  authorized  to  receive  the  money,  and  to  give  the 
debtor  a  discharge. 

Where  a  tender  is  made  by  two  debtors  who  are  jointly  liable,  a 
subsequent  demand  of  o^jeof  them  is  sufficient.  The  demand  should 
be  personal,  by  the  creditor,  his  agent  or  attorney,  that  the  defen- 
dant may  have  an  ■)])portunity  of  paying  in  hand  the  sum  demanded; 
therefore  a  letter  sent  by  the  plaintiff's  attorney,  demanding  the  sum 
tendered,  is  not  sufficient. 

(B)  Of  the  effect  of  a  tender.,  when  the  contract  is  for  the  payjne7it 
of  money.,  and  tender  is  made  before  the  commencement  of  the  suit. 

The  amount  of  money  tendered  must  be  brought  into  court,  and 
deposited  with  the  instice;  and  the  same  should  be  paid  over  to  the 
plaintiff,  w  ho  is  entitled  to  it,  w  hether  the  judgment  be  for  or  against 
him.® 

(a)  17  Ens.  C.  L.  Rep.  70;  4  DaII.325.  (d)  3  Jolins.  Ca.  249;  per  Thompson,  J. 

(b)  16  Ene.  C.  L.  Rep.  87.  (e)  Wright's  Rep. 336. 

(c)  12  Mass.  Eep.  450. 


§6,7,(A),(B),(C).(D).]  TENDER.  459 

If  the  defendant  prove  a  tender  of  the  amount  dtie,  or  damages 
sustained,  before  the  suit  is  commenced,  a  memorandum  of  the  tact 
should  be  made  on  the  docket,  and  judgment  rendered  as  in  other 
cases  against  the  plaintifl'  for  costs. 

No  interest  can  be  allowed  to  the  plaintiff,  after  the  tender. 

If  the  justice  find  that  no  tender  was  made,  or  that  a  sufficient 
sum  was  not  tendered,  or  that  the  defendant,  after  the  tender,  re- 
fused to  pay  it,  then  judgment  should  be  rendered  accordingly 
against  the  defendant  for  the  amount  due,  and  for  costs.(l) 

(C)   TV/iei-e  the  contract  is  foj-   the  payment  of  a  sum  of  money 
certain^  and  a  tender  is  made  after  suit  is  brought. 

Such  a  tender  can  only  be  made  by  bringing  into  court  the  mo- 
ney due,  and  interest,  and  the  costs  that  have  at  the  time  accrued. 
Judgment  must  be  rendered  discharging  the  defendant.(2) 

Where  money  is  paid  into  court  on  a  claim  entitled  to  interest, 
the  interest  must  be  paid  to  the  time  of  payment  into  court,  or  the 
plaintiff  may  proceed  in  the  action  for  the  difference. 

{D)   When  the  claiyn  is  for  damages  arising  from  a  negligent  or 
involuntary  trespass  upon  lands. 

If  the  defendant  in  such  action  disclaim  to  make  any  title  or  claim 
to  the  land,  and  the  trespass  be  by  negligence  or  involuntary,  and 
he  has  tendered  sufficient  amends  for  such  trespass,  and  deposits 
the  money  with  the  justice,  judgment  must  be  rendered  against  the 
plaintiff  for  costs,  and  he  is  forever  barred  from  all  other  suits  con- 
cerning the  same  trespass. ''(3) 

(a)  Stat.  662,  569. 

(1)  Form  of  entry,  and  jiulg^ment,  when  there  is  a  tender  before  suit  is  com- 
menced, on  a  contract  for  the  payment  of  money. 

The  defendant  pleads  that  he  did  tender doHars   to  the  plaintiff  on  the 

day  of ,  A.  D.  18 — ,  the  money    due   on    the    note,  \or  contract,  or 

writing  obligatory,  or  account,  or  promise,  us  the  case  may  be"]  upon  w  iiicii  this  suit 
is  brought,  before  the  commL-ncement  tliercof,  and  brings  here  into  court  the 
above  amount.  Issue  taken  thereon,  trial  had,  [here  name  the  witness  examitiecf] 
and  I  do  find  said  plea  true  in  siibst:ince  and  tact.      It  is  tht- reforc  consi(k-i-ed  by  me 

that  tile  phiiiitiff  recover  of  the  defendant  the  said  sum  of  dollars  now  hero, 

and  tendered,  and  by  me  paid  over  to  the  plaintiff,  and  that  the  defendant  recover 
of  the  plaintiff  his  costs  herein,  taxed  at dollars  aiul cents. 

Execution  m.iy  issue  for  the  costs  of  the  defendant,  and  the  costs  of  the  plain- 
tiff may  be  indorsed  on  the  writ,  as  in  other  cases. 

(2)  Form  of  entry  on  the  docket,  when  the  contract  is  for  the  payment  of  a 
sum  of  money  certain,  and  a  tender  is  made  after  suit  is  brought. 

The   defendant  brought  into  court (h)llars cents,   the  amount  due  the 

plaintiff,  with  interest;  and d(dlars cents,   the   costs  herein.      This  suit 

is  thereby  settK  d. 

(3)  Form  of  the  chickct  entry,  where  tender  of  amends  has  been  made  for  a 
negligent  or  involuntary  trespass. 

June  1,  1840,  2  o'clock,  p.  m.  The  parties  appeared;  the  defenthint  deposited 
with  me  — —  cents,  and  disclaims  to  make  any  title  or  claim  to  tlic  land  un  which 


460  TENDER.  [Prl.  2^  Title  35^ 


(E)   When  the  unit  is  on  a  contract  for  work  and  lahor^  or  for  the 
payment  of  jn-opcrti/. 


If  a  tender  of  work,  labor  or  property,  be  iiKiclc  at  the  time  and 
place  designated  by  the  contract,  or  promise,  the  value  of  the  labor 
or  jiropcrty  so  tendered  must  be  ascertained,  and  judgment  ren- 
dered in  iavor  of  the  j)lainlilf  for  the  same,  without  interest  or 
costs;  unless  the  defendant  wiH  forthwith  })erform  his  contract,  or 
give  the  jilaintill"  such  assurance  as  the  justice  may  aj>))rove,  that 
he  win  perform  the  siune  witiiin  such  time  as  the  justice  may  direct; 
in  which  case,  judgment  must  be  rendered  for  the  defendant. ''(1) 

Where  judgment  is  rendered  in  favor  of  the  plaintilf  for  tiie 
value  of  the  property,  or  labor,  the  statute  does  not  direct  that  he 
shall  pay  the  costs,  but  that  judgment  shall  be  rendered  in  his  favor 
for  the  value  of  the  property,  w^ithout  interest  or  costs.*  It  was 
perhaps  the  intention  of  the  legislature  to  make  tlie  plaintiff,  in 
such  case,  pay  the  costs.  He  is  at  all  events,  liable  for  his  own 
costs. 

(a)  Stat.  932,  $1. 


the  trespass  herein  complained  of  was  committed,  and  pleads  now  here,  that  the 
said  trespass  was  involuntary,  [or   negligent,   as  the  case  may   Ije]  and  that  he  did 

tender  to  said  plaintiff'  said  sum   of cents  before  the  commencement  of  this 

suit,  which  was  sufficient  amends  for  said  trespass.  Issue  thereon  taken,  and  trial 
had,  &.C.   I  do  find  said  plea  true  in  substance  and  fact.      It  is  therefore  considered 

by  me  that  the  plaintiff'  recover  of  tlie  defendant  said  sum  of cents,  tendered 

and  now  here  paid  over,  and  that  said  defendant  recover  of  said  plaintiff"  his  costs 
herein,  taxed  at dollars cents. 

(1)  Form  of  docket  entry  where  tender  has  been  made  upon  a  contract  for 
work,  labor,,  or  property: 

May  4,  1846,  2  o'clock,  p.  m.  The  parties  appeared.  The  defendant,  now- 
here, pleads  that  he  did  tender  to  the  plaintilf  the  said  work  and  labor,  [or  sny, 
the  said  property,  as  the  case  may  ie,]  at  the  said  time  and  place  designated  by  the 
above  mentioned  contract.  Issue  taken  thereon:  and  thereupon,  at  tiie  time 
aforesaid,  trial  had;  W —  W — ,  &c.  examined  as  witnesses  for  tlie  plaintiff",  &c.; 
and  I  do  find  the  said  plea  of  the  plaintiff  true,  in  substance  and  in  fact;  and  that 
the  value  of  said  work  and  labor,  [or  say,  tlie  said  property,  us  the  case  may  he,']  is 
forty  dollars. 

If  the  defendant  desire  to  perform  the  contract,  here  add:  Thereupon,  the  de- 
fend:int  did  forthwith  perform  said  contract:  [or  say,  thereupon,  the  defendant 
did  execute  a  bond,  with  H —  li —  as  sui-ety,  in  the  penal  sum  of  two  hundred 
dollars,  conditioned  to  perform  said  contract  within  one  month:  or  say,  conditioned 

to  deliver  said  property  to  said  A —  H —  at ,  on  the day  of ,  A.  D. 

18 — :  which  bond,  and  the  time  therein  mentioned  for  the  performance  of  said 
contract,  l)eing  approved  and  dii'ected  by  me:]  It  is  tueuefohe  consideueu  by 
me,  tiiat  the  defendant  recover  of  the  plaintiff' his  costs  herein,  taxed  at dol- 
lars   cents. 

But  If  ttie  defendant  prefer  that  judgment  should  lie  entered  against  him  for  the 
value  of  the  tufjor  or  property,  say: 

Thereupon  the  deftndant,  not  desiring  to  perform,  or  to  give  assurance  that  he 
will  perform  said  contract:  It  is  TiiEUErr'iiK  toNSiUEiiED  by  me,  that  the  plaintiff" 
recover  of  the  defendant  the  said  sum  of  [licre  insert  the  assessed  value  of  theprop- 
erty  or  labor]  dollars. 


§7,(E),(F).]  TENDER.  461 

When  the  defendant  performs,  or  gives  assurance  that  he  \vill 
perform  the  contract,  and  judgment  is  entered  against  the  plaintitf 
for  the  costs  of  the  defendant,  the  costs  of  the  plaintili"  may  be  in- 
dorsed on  the  execution,  and  collected,  as  in  other  cases.(l) 

When  there  has  been  a  tender,  and  judgment  is  rendered  against 
the  defendant  for  the  value  of  the  property,  the  defendant  becomes 
the  owner  of  the  property  tendered. 

In  all  cases  where  there  has  been  a  good  and  legal  tender  of  the 
property,  the  defendant  may  claim,  as  a  right,  that  he  shall  be  per- 
mitted to  perform  the  contract,  and  the  justice  should  direct  its  per- 
formance, so  far  as  regards  the  delivery  of  the  property,  in  such 
manner  as  will  be  most  convenient  to  the  defendant.  For  instance: 
if  the  defendant,  in  order  [o  make  the  tender,  was  compelled  to 
transport  the  property  to  any  particular  place,  the  justice  should 
compel  the  plaintitf  to  take  the  property  at  the  place  where  it  may 
be  at  the  time  judgment  is  rendered,  or  such  other  reasonable  place 
as  the  defendant  may  designate. 


(F)  Whe7i  suit  is  brought  upon  other  contracts^  or  for  other  icrono-s 
or  injuries^  than  those  lierein  before  mentioned. 


In  these  cases,  a  tender  before  suit  is  brought  has  not,  in  gen- 
eral, any  effect  upon  the  rights  of  the  parties.  But  after  the  suit  is 
brought,  the  defendant  may  in  these,  as  well  as  in  other  cases,  bring 
into  court  and  deposit  with  the  justice,  for  the  use  of  the  plaintitf, 
the  amount  that  he  admits  to  be  due,  together  with  all  costs  that 
have  then  accrued.  If  the  plaintitf'  refuse  to  accept  the  same  in 
discharge  of  his  suit,  and  do  not  afterwards  recover  a  larger  amount 
than  the  sum  deposited,  exclusive  of  costs,  he  will  be  liable  for  such 
costs  as  accrue  after  the  deposit.*  The  plaintifi' will  be  entitled  to 
the  money  deposited. (2) 

(a)  Stat.  660,  $61,62. 


(1)  See  page  109. 

(2)  rorm  of  docket  entry,  where  the  plaintiff  recovers  no  more  than  the  amount 
deposited  by  the  defendant  with  the  justice: 

June  1,  1846.      Tlie  defendant  comes,  and  admits  to  be  due  to  tlic  plaintifl', 

dollars cents,  and  deposited  tlie  same,  together  with dolhu's 

cents,  tiie  amount  of  tlie  present  costs  of  this  suit. 

June  2,  1846.  The  plaintiff  appeared,  and  refused  to  accept  the  above  amount, 
in  discharge  of  this  suit. 

June  2,  1846,  2  o'clock,  P.  M.  The  parties  appeared,  and  trial  liad.  It  is 
thereupon  f'oniid  by  me  tliat  the  said  de|)osit  is  liie  full  amount  due,  &c.,  (o  the 
plaintiff  ill  the  premises.  It  is  therefore  considt-red  by  nie,  that  the  ])LiintJfl' re- 
cover of  the  defendant  the  said  sum  of dollars cents  deposited,   and 


462  TENDER.  [Prt.  2,  Titk  35,  §7,  (F).] 

If  the  nmnnnt  recovered  exceed  the  amount  deposited,  then  judg- 
ment is  rendered  against  the  defendant  lor  the  costs  which  accrued 
after  the  deposit.  Jn  either  event,  the  defendant  cannot  withdi-aw 
tlie  deposit:  it  belongs  to  the  plaintifl". 


now  here  paid  over  to  the  plaintiflTby  me,  and  that  the  defendant  recover  of  the 
plaintiff  his  costs  herein,  which  have  accrued  since  said  deposit,  taxed  at  — — 
dollars cents. 


TITLE  XXXVI. 
TRESPASS  UPON  LANDS.(l) 


SECTION    I.  DEFINITION. 

II.  WHAT  AMOUNTS  TO  A  LICENSE  TO  ENTER  UPON  LANDS, 

III.  OF  THE  POSSESSION  NECESSARY  TO  MAINTAIN  THIS  ACTION. 

IV.  OF  THE  DEFENCE,  ETC. 


Sec.  I. DEFINITION. 

Trespass  is  the  proper  form  of  action  to  recover  damages  for  an 
illegal  entry  upon,  or  an  immediate  injury  occasioned  by  force,  ex- 
press or  implied,  to  land,  or  to  any  thing  built  or  placed  there  with 
a  view  of  improving  it.  The  term  land  includes  the  buildings  upon 
it,  as  w'ell  as  the  crops. 


Sec,  II, WHAT  AMOUNTS  TO  A  LICENSE  TO  ENTER  UPON  LAND. 

The  right  to  land  is  exclusive;  and  every  entry  therein,  without 
the  license  of  the  owner,  or  the  license  or  authority  of  law,  is  a 
trespass.*  This  leave  from  the  owner,  may  be  either  ex/)?'ess  or  im- 
plied. The  first  is,  where  ho  gives  his  consent  in  terms,  by  express- 
ly authorizing  a  person  to  enter  upon  his  land,  with  or  without  a 
valuable  consideration  for  the  license.  The  second  may  arise  from 
the  familiar  intimacy  of  one  neighbor  with  another,  in  consequence 
of  which  he  habitually  enters  on  the  plaintitf's  land,  or  into  his 
house,  for  the  purpose  of  friendly  intercourse;  or  where  neighbors 
are  in  the  habit  of  entering  upon  the  plaintiff's  land  to  procure 
water  from  his  spring,  or  well:  these,  and  a  great  number  of  other 
instances  might  be  enumerated,  where  it  is  presumed  that  the  owner 
of  the  land  assented  to  the  entry.  But  such  licenses,  whether  ex- 
press or  implied,  unless  ff>unded  upon  such  a  consideration  as  would 
make  them  good  contracts, (2)  may  be  revoked,  at  any  time  by  the 
owner;''  and  an  entry  after  notice  that  the  license  is  revoked,  will 
be  a  trespass. 

(a)  3  BI.  Corn.  209.  (b)  10  Jolins.  Rep.  2-16. 

(1)  As  to  trespass  upon  public  lands  of  the  State,  see  Stat.  253, 

(2)  As  to  the  consideration  necessary  to  render  a  cortract  valid  pnd  binding", 
see  page  285,  and  wiiat  tlicrc  follows. 


464  TRESPASS  UPON  LANDS.  [Pft.  2,  Tilk  36. 

An  agreement  to  purchase  land,  whether  written,  or  by  parol,  is 
not,  of  itself,  an  express  license  to  the  buyer  to  enter  upon  it.*  But 
where  the  bu}er  pays  interest  on  the  purchase  money,  it  may  be 
fairly  presumed,  in  the  absence  of  any  agreement  to  the  contrary, 
that  the  possessi(in  of  the  buyer  is  by  the  assent  of  tiic  seller,  espe- 
cially where  the  entry  has  been  made  with  the  knowledge  of  the 
seller.  Neither  a  license  to  enter,  nor  a  contract  to  sell  and  conve^r 
land  upon  the  payment  of  the  purchase  money,  or  the  performance 
of  any  other  act,  will  give  the  buyer  a  right  to  cut  timber,  if  the 
cutting  thereof  will  injure  the  freehold.*  But  if  such  a  contract  be 
made  for  wild  lands,  w  ith  a  license  to  enter  upon  and  occupy  it,  the 
buyer  may  improve  the  land  by  clearing  off  the  timber,  and  may  sell 
the  timber  taken  from  the  land  for  that  purpose.^  But  he  will  have 
no  right  to  cut  timber,  unless  it  be  for  the  purpose  of  improving 
and  enjoying  the  land.*^ 

A  right  of  w^ay  may  exist  by  act  and  operation  of  law;  for  if  a 
rpnn  grant  a  piece  of  ground  in  the  middle  of  his  field,  he  at  the 
same  time  tacitly  and  impliedly  gives  a  way  to  come  at  it,  and  the 
grantee  may  cross  the  grantor's  land  for  that  purpose  without  being 
a  trespasser. 

A  constable  or  other  oHicer,  who  enters  upon  land  to  execute  a 
summons,  execution,  or  the  like,  is  not  a  trespasser  by  so  doing.  So, 
a  creditor  may  enter  upon  land,  to  recjuest  the  payment  of  money, 
or  other  thing  payable  there.  But  a  person  has  no  right  to  enter 
for  the  purpose  of  gleaning  in  another's  field j*^  nor  for  the  purpose 
of  taking  away  his  own  goods  or  chattels,*'  unless  such  property 
was  sold  to  him  by  the  owner  of  the  land;  in  which  case,  a  right 
to  go  and  take  the  property  is  incident  to  the  sale.^ 

Where  the  law  gives  an  ofTicer,  or  other  person,  a  license  to  en- 
ter, and  he  abuses  it,  he  thereby  forfeits  the  license,  and  is  consider- 
ed a  trespasser,  even  from  the  time  he  first  entered.  Thus:  If  a  per- 
son enters  an  inn,  and  wantonly  injures  property,  or  behaves  with 
rudeness;  or  if  a  constable,  or  other  oflicer,  enter  with  process  and 
illegally  break  open  doors,  or  assault,  or  unauthorizedly  turn  out  of 
possession  any  of  the  family :  in  each  of  these  cases  there  is  a  tres- 
pass committed,  in  like  manner  as  if  there  had  been  no  right  to  enter. 

Where,  however,  an  authority,  or  license  to  enter,  is  not  given  by 
law,  but  by  one  party  to  another,  althouirh  the  latter  abuses  it  to  the 
injury  of  the  former,  and  an  action  on  the  case  will  lie  against  him 
for  the  injury,  yet  he  will  not  be  liable  as  a  trespasser.*" 

If  a  highway  becomes  impassible,  and  a  traveler  is  compelled  of 
necessity  to  go  over  the  land  adjoining,  the  law  gives  him  license 
to  do  so.' 

If  a  person  places  on  his  land,  near  mine,  a  noisome  and  offen- 
sive nuisance,(l)  by  which  my  health,  or  convenience  and  comfort 

(a)  9  Johns.  Rep.  35.  331.  (e)  6  Johns.  Rep.  5;  14  Id.  460. 

(b)  Wrii!hfs  Rep.  362.  382.  (g)   11  East,  366. 

(c)  3  Wend.  Rep.  104.  (li)   8  Co.  146. 

(d)  .  H.  Bl.  51.  (i)  4  Ohio  Rep.  427. 

(1)  The  term  "nuisance,"  signifies  any  thing  that  causes  hurt,  inconvenience, 
damage,  or  annoyance. 


§2,  3.]  TRESPASS  UPON   LANDS.  465 

are  annoyed,  I  may.  peaceably  enter  on  the  owner's  soil  and  abate 
it,*  and  cannot  be  sued  tlierefor  in  any  form  of  action.  But  I  must 
not  commit  a  breach  of  the  peace  in  so  doing.(l) 


Se:.  III. C^'  THE  POSSESSION  NECESSARY  TO  MAINTAIN  THIS  ACTION- 

The  plaintiff  must,  in  general,  be  in  actual  possession  of  the  land 
at  the  time  the  injury  is  done,  in  order  to  maintain  the  action.''  It 
is  not  meant  by  this,  that  the  plaintiff  shall  actually  have  his  feet  on 
the  land  when  the  trespass  is  committed ;  but  the  possession  is  evi- 
denced by  fencing,  cultivating,  or  otherwise  improving  and  using  it, 
or  exercising  such  other  acts  upon  or  about  the  same,  as  the  owners 
of  land  generally  do."^ 

TJie  mere  payment  of  taxes  and  having  a  deed  of  the  land,  is  not 
sufficient  evidence  of  title  5*^  but  actual  possession  of  part  of  a  farm, 
accompanied  with  a  claim  of  title  to  the  whole,  will  constitute  a  pos- 
session of  the  whole,  though  a  part  be  altogether  unimproved,  and 
not  inclosed  by  any  kind  offence.^  The  plaintiff,  in  order  to  show 
that  he  claims  the  whole,  may  produce  his  deed,  as  evidence  of  the 
extent  of  his  boundaries  and  claim. 

Where  land  is  unimproved  and  unoccupied,  the  person  having 
the  legal  title  thereto  is  deemed  in  possession,  and  may  sue  for  a 
trespass. s  This  may  l)e  considered  an  exception  to  the  general 
rule.  But  the  plaintiff,  in  such  case,  in  order  to  prove  his  legal  title, 
must  show  not  only  a  deed,  or  lease  to  himself,  but  a  regular  chain 
of  conveyances  by  patent  and  deeds,  duly  executed  from  the  Uni- 
ted States  down  to  himself;  or  possession  by  himself  and  those  under 
whom  he  claims,  for  twenty-one  years. 

A  person  is  deemed  in  actual  possession  of  a  highway  which  runs 
over  his  lands,  and  may  maintain  trespass  against  another  for  any 
use  of  the  road  except  for  traveling,  as  for  cutting  timber,  digging 
in  the  soil,  &c.  Tiie  public  acquire  the  mere  right  of  using  the 
road  for  traveling,  and  the  purposes  incident  to  traveling,  and  every 
other  right  belongs  to  the  owner,  as  exclusively  as  if  the  highway 
never  existed.'' 

If  a  tenant  is  in  possession  of  land,  he,  and  not  the  landlord,  must 
sue  a  trespasser.'  But  where  land  is  leased,  and  trees  are  cut  down 
by  a  stranger  during  the  term  of  the  lease,  the  landlord,  though  he 
cannot  sue  for  the  trespass,  may  maintain  an  action  of  trover  for 
them,  before  a  justice  of  the  peace;''  for,  when  the  trees  were  se- 

(a)  2  Salk.  459;  12  Pctersd.  Ab.  795.  (c)  12  Johns.  Rep.  18:3. 

(I.)  2  01,io  Rep.  ](),■;;  12  Jolms.  Rep.  183;  (li)  1    Uiirr.    143;   1    Pick.  Rep.    122;  2  Sir. 
8  Mass.  Rep.  411.  1004;  2   Jolms.   Rep.  357;  6   Mass.    Rep. 

(c)  4  Joliiis.  Rep.  105.  457;  1  WiLs.  107;  6  East's  Rep.  154. 

(d)  3  Id.  388.  (i)  4  Ohio  Rep.  4J5. 

(e)  1  CaineV,  358;  12  Jolms  Rep.  452.  (k)  Mullcr  vs.  Flowers,  7  Ohio  Rep. 


(1)   As  to  cnlerinij  upon  land  of  another  for  the  purpose  of  removing  drift,  or 
drift  wood,  see  Stut.  G()4,  fi05. 

59 


466  TRESPASS  UPON  lani's.  [Pit.  '2,  7V7/c;  3(,J. 

vcred  from  the  land,  ihey  bccnme  the  per^ioiuil  i»r()i)city  of  die  land- 
lord.* The  tenant  can  sue  the  landlord  himself,  if  he  enters  with- 
out license.''  IJiit  where  a  person  has  entered,  anil  is  in  possession 
wrongfully  and  without  license,  he  cannot  of  course,  sue  the  owner 
for  a  trespass;  but  is  himself  liable  to  an  action,'' 

A  tenant  who  hohls  })()ssession  after  the  expiraticm  ol"  his  lease, 
may  maintain  an  action  of  trespass  against  a  mere  wrongdoer;  and 
it  will  be  no  defence  to  the  action,  that  the  lease  of  the  plaintiifhad 
ex})ired. 

Where  a  tenant  wrongfully  holds  possession  after  the  expiration 
of  his  lease,  the  landlord  has  no  right,  it  seems,  to  forcibly  turn  him 
or  his  family  out;  for  so  doing,  or  lor  entering  the  house  and  throw- 
ing out  the  tenant's  hu'uiture,  the  landlord  may  be  sued  in  an  action 
of  trespass.*^  But  the  landlord,  in  such  case,  has  a  right  to  peacea- 
bly take  possession,"  and  therefore,  if  the  tenancy  be  determined, 
and  the  tenant  and  his  family  be  gone  away  and  the  house  locked 
up,  no  one  being  in  possession,  the  landlord  would  be  justified  in 
breaking  into  tlie  house  and  obtaining  ])ossession,  even  though  some 
articlcsof  furniture  remained  in  the  house.^ 

If  a  tenant  sue  his  landlord  for  entering  upon  the  premises  after 
the  expiration  of  the  lease,  and  forcibly  turning  him  out,  the  land- 
lord may  show,  to  reduce  the  damages,  that  he  had  given  the  plain- 
tiff notice  to  ([uit,  and  that  the  tenant  had  rel'uscd  to  quit,  or  to  pay 
rent,  and  w^as  insolvent.*" 

The  person  who  has  a  right  to  gather  the  growing  crop,  or  grass, 
is  considered  in  possession,  and  may  sue  for  a  trespass.'  Where 
the  owner  or  possessor  works  the  land  on  shares  with  another,  they 
should  both  sue  for  an  injury  done  to  the  crop.(l)  Where  a  tenant 
has  assigned  all  interest  in  a  crop  to  another,  the  possession  passes 
to  the  assignee,  who  alone  can  sue  a  trespasser.''(2)  A  verbal  lease, 
where  possession  is  taken  and  work  performed  under  it,  is  binding 
on  the  landlord  and  tenant.' 

(s)  7  Eng,  C.  L.  Rep.  272;  7  T.  R.  13.  (g)  S  Eng  C.  L.  Rep.  280. 

(b)   1  Oliio  Rep.  252.  (li)  VVriglii's  Rep.  672. 

(e)  4  Johns.  Rep.  150.  (i)  9  Johns.  Rep.  10!!.  143;  1  Ohio  Rep.  252. 

(d)  25  Eng.  C.   L.  Rep.  398;   8   Id.  280;  hut       (kj  'J  Johns.  Ucp.  143. 

Bee  4  Johns.  Rep.   159,    160;  9  Wend.       (I)   1   Ohio  Rep.   251;    Wright's   Rep.  646;  3 
Rep.  201.  Ohio  Rep.  295. 

(e)  7  T.  R.  431. 


(1)  3  Joh77s.  Rep.  216.  Unless  both  sue,  tlie  defendant  may  plead  this  in  abate- 
ment; but  before  a  justice  of  the  peace,  the  plaintiff  should  suffer  a  nonsuit. 

(2)  When  the  termination  of  a  lease  is  fixed  and  certain,  the  tenant  is  not  enti- 
tled to  the  off-growins^  crops  sowed  by  him  during-  the  lease,  which  ripen  aftei"  its 
expiration,  but  they  go  to  the  landlord,  or  the  successor  of  tlie  tenant  under  a  new 
lease;  but  it  is  otherwise  where  the  termination  of  the  lease  is  uncertain,  as,  if  it 
depend  upon  an  event  over  which  the  tenant  has  no  control,  or  upon  the  decision 
or  will  of  the  landlord.      10  Johns.  Rep.  360. 


§3,  4.]  TRESPASS  UPON   LANDS.  4G7 

Sec.  IV.— of  the  defence,  &c. 

It  follows  from  what  has  already  been  stated,  that  the  plaintiff 
will  fail  in  the  action  if  lie  was  not  in  possession  of  the  land,  either 
in  fact  or  constructively.  The  defendant  may,  in  general,  show 
that  he  himself  is  the  owner  of  the  land,  and  entitled  to  the  posses- 
sion as  against  the  plaintitK  and  thereby  defeat  the  action.(l) 

It  wnll  be  no  defence,  for  the  defendant  to  show  that  he  did  not 
intend  to  commit  a  trespass.  Thus:  if  a  person  without  authority 
cut  wood  on  the  land  of  another,  the  wood  will  not  only  remain  the 
property  of  the  owner  of  the  soil,  but,  if  the  trespasser  sell  the 
wood,  and  the  purchaser  enter  upon  the  land  and  carry  off  the 
wood,  he  will  be  lialjle  to  the  owner  in  an  action  of  trespass,  al- 
though lie  was  ignorant  of  the  original  trespass,  and  paid  the  full 
value  of  the  wood  to  the  person  who  cut  it.^ 

Where  a  trespass  is  committed,  and  at  the  same  time  goods  or 
chattels  are  injured  or  taken  by  the  trespasser,  the  owner  may  re- 
cover, in  the  action  of  trespass,  as  well  f(jr  the  unlawful  entry  upon 
the  lands,  as  for  the  property  taken,  or  the  injury  done  thereto. 

The  payment  of  a  judgment  for  the  value  of  property  wrongfully 
taken  and  kept  by  the  defendant,  vests  the  ownership  of  such  pro- 
perty in  the  defendant.''  But  the  mere  recovery  and  payment  of 
damages  ybr  an  injury  to  property,  does  not  transfer  the  ownership 
of  the  property  to  the  wrongdoer. 

Where  suit  is  brought  tor  damages  done  by  trespassing  animals, 
which  have  been  assessed  by  fence  viewers,  their  certificate  is  />n- 
ma  facie  evidence  of  the  amount  of  damages  actually  sustained.*^ 
The  amount  of  the  damages  found  by  the  fence  viewers  may  be 
contested,  and  either  party  will  have  a  right  to  introduce  testimo- 
ny for  that  purpose.  If,  however,  no  testimony  be  given  in  relation 
to  the  damages,  the  justice  should  be  guided  by  the  certificate. "^(2) 

(a)  5  Mass.  Rep.  241;  5  Johns.  Rep.  348.  (c)  Stat  410,  59. 

(1))  6  Johns.  Rep.  ]6«.  (<1)  Id.  ib. 


[1]  For  the  exception  to  this  rule,  see  tlie  preceding-  section. 

[2]  See  furtlier  in  relation  to  trespassing  animals,  Stat.  409  to  412. 


TITLE  XXXVII. 


TRIAL  OF  THE  RIGHT  OF  PROPERTY  TAKEN  ON  EXECU- 
TION BY  A  SHERIFF. 


When  property  levied  upon  is  claimed  by  any  other  person  than 
the  judgment  debtor,  the  sherifi'must  forthwith  give  notice  in  wri- 
ting, to  some  justice  of  the  peace  of  the  county,  in  which  notice 
must  be  set  forth,  the  names  of  the  plaintiff  and  defendant,  together 
with  the  name  of  the  claimant;  and  at  the  same  time,  the  sherilf 
must  furnish  tlie  justice  with  a  schedule  of  the  jiroperty  claimed. 
The  justice,  immediately  upon  the  receipt  of  the  notice  and  sche- 
dule, siiould  copy  the  same  upon  his  docket,  and  issue  a  writ  of  ve- 
nire facias,  or  summons,  directed  to  the  sheriff,  or  any  constable  of 
the  county,  commanding  him  to  summon  five  disinterested  persons, 
having  the  qualifications  of  electors,  who  must  be  named  in  the  ve- 
nire, to  appear  before  him,  at  the  time  and  place  therein  mentioned, 
(which  time  must  not  be  more  than  three  days  after  the  date  of  the 
writ,)  to  try  and  determine  the  right  of  the  claimant  to  the  property 
in  controversy.''(l) 

The  claimant  must  give  two  days'  notice  in  writing.(2)  to  the 
plaintiif,  or  other  party  for  w  hose  benefit  such  execution  was  issued 
and  levied,  his  agent,  or  attorney,  if  within  the  county,  of  the  time 
and  place  of  such  trial;  and  must  prove  on  the  trial  to  the  satisfac- 
tion of  the  justice,  that  such  notice  was  given,  or  that  the  same  could 
not  be  given  by  reason  of  the  absence  of  the  party,  his  agent  or  at- 
torney, as  above  mentioned.^      If  the  claimant  do  not  satisfy  the 

(a)  Stat.  471,  $6,  (b)  Id.  ib. 


(1)  Form  of  the  Venire  for  the  jury: 

The  State  of  Ohio,  Township,  County,  ss. 

To  any  constable  [or  say.  To  tlie  slieriff]  of  said  county,  greeting. 

You  are  hereby  commanded  to  summon  A B ,   [Jiere  name  the  jury  of 

five,]  five  disinterested  men  of  said  county,  liaving  tlie  quahfications  of  electors,  to 
appear  before  me,  G H ,  a  justice  of  the  peace  of  said  count}^  at  my  of- 
fice in  said  township,  on  the day  of ,  A.  D.  18 — ,  at  ten  o'clock,  a.  m., 

to  try  and  determine  the  riglit  of  J —  C ,    to  certain  property  claimed  by  him, 

and  levied  upon  by  the  sheriff  of  said  county,  by  virtue  of  an  execution  issued  in 

favor  of  A B ,  against  C D ;  and  of  this  writ  make  legal  service 

and  due  return. 

Given  under  my  hand  and  seal,  this day  of ,  in  the  year  18 — . 

G H J.  p.  [Seal.] 

(2)  The  form  of  this  notice  Is  in  substance  the  same  as  the  one  which  will  be 
found  on  page  173. 


IPit.  2,  Title 37.]         TRIAL  OF  sheriff's  levt.  4<39 

justice  in  this  respect,  judgment  as  in  case  of  nonsuit,  should  be 
rendered  against  him.  The  justice,  for  good  cause  shown,  would 
be  authorized  to  adjourn  the  trial  for  a  reasonable  time.  The  ad- 
journment ought  not,  however,  to  be  granted  for  such  a  time,  as 
would  prevent  the  sheriff  from  afterwards  advertising  and  selling 
the  property  on  the  execution.  If  by  reason  of  challenge,(l)  or  any 
other  cause,  there  is  not  a  full  jury,  the  justice  may  order  the  con- 
stable to  fill  the  panel  with  talesmen. 

The  jury  must  be  sworn  or  affirmed  by  the  justice. (2) 
If  the  jury  find  the  right  to  all  or  any  part  of  the  goods  to  be  in 
the  claimant,  judgment  is  entered  in  his  favor  for  costs,  and  execu- 
tion awarded  thereon  as  in  other  cases;''  but  if  the  right  to  the 
goods,  and  every  part  thereof^  shall  not  be  vested  in  the  claimant, 
according  to  the  finding  of  the  jury,  then  judgment  must  be  ren- 
dered against  the  claimant  for  costs. (3) 

No  appeal  is  allowed  from  the  judgment  of  the  justice.  The 
effect,  however,  of  the  judgment,  is  the  same  as  on  the  trial  of  the 
right  of  property  levied  upon  by  a  constable. (4) 


FORM  OF  THE  VERDICT. 

A B ,  [_the  claimant.'] 

vs. 

C D ,  [the  plaintiff^  to  the  execution.,  or  oil/er  person  for 

ichose  benejit  the  execution  is  issued.] 

If  the  jury  find  for  the  claimant.^  say: 

We,  the  jury,  do  find  that  the  said  A B hath  a  just  right 

to  the  following  property  in  controversy,  to  wit:  \Jiere  state  the  ar- 
ticle or  goods  ichicJi  the  claimant  hath  right  ^o.] 

If  the  jury  fimd  against  the  claimant.,  say: 

We,  the  jury,  do  find  that  the  said  A B ,  the  claimant, 

hath  no  just  right  to  the  goods  and  chattels  claimed  by  him,  or  to 
any  part  of  them. 

The  jury  subscribe  their  names  to  the  verdict. 

(a)  Stat.  471,  §6. 


(1)  As  to  what  is  a  g'ood  cause  of  challenge,  see  Sfat.  492,  §14, 

(2)  The  form  of  the  oath  is  in  substance  pointed  out  by  the  statute,  471,  §7,  and 
must,  therefore,  be  in  tlie  form  following: 

You  and  each  of  you  do  solemnly  swear  in  the  presence  of  Almighty  God,  the 
searciicr  of  all  licarts,  [or  if  the  jnrtj  ajjirni,  say,   You  do  solemnly  and  sincerely 

declare  and  affirm,]  that  you  will  try  and  determine  tiie  right  of  J C to 

the  property  in  controversy,  and  a  true  verdict   give,    according  to  the  evidence; 
[Acre  add  if  the  jury  affirm,  and  this  you  do  luidcr  the  pains  and  penalties  of  per- 

(3)  There  is  a  contradiction  in  tiie  terms  of  the  statute, 

(4)  As  to  the  effect  of  such  judgment,  see  pages  174,  175. 


470  TRIAL  OF  sukriff'.s  LKVY.  [iV/.  2,  Ti^/c  37,] 


FORM  OF  KNTRV  UPON   TlIK  DOCKET. 


A 13 ,  [t/ie  name  of  the  claimant^ 

vs. 

C D ,  [iJie  najue  of  the  plain  I  iff'  to  the  execution^  or  tlie  name 

of  persons  interested  in  the  issuinir  ufthe  execution.'] 

Mdi/  Alh,  ]  84 G.— This  day  .S T ,  the  sheriff  of coun- 
ty, served  ujioii  lue  a  notice,  of  which  the  following  is  a  copy:  \Jiere 
copy  the  notice:]  and  said  shcritl'also  then  left  with  me  the  following 
schedule  of  the  property  claimed;  [here  copi/  the  schedule;]  thereup- 
on, I  issued  a  venire  ftxcias  for  the  following  disinterested  persons, 
having  the  (jual ideations  of  electors,  to  wit:  [Jiere  insert  the  names  ojf 
the  jury:]  to  appear  at  2  o'clock,  p,  m,,  [or  other  hour  agreeably  to 

the  fact.]  on  the day  of ,  18 — ,  the  time  fixed  for  trial, 

and  delivered  the  writ  to  I J ,  constable. 

May ,  1846,  2  o'clock,  p.  m.  —  The  claimant  and  said  C 

D attended.     The  venire  facias  returned,  [here  copy  the  return.] 

The  claimant  satisfied  me,  by  proof,  that  on  the day  of , 

A.  D.  18 — ,  he  gave  due  notice  in  writing  to  C D ,  of  the 

time  and  place  of  this  trial.  The  jurors,  with  R S ,  appear- 
ed; were  duly  sworn  to  try  and  determine  the  right  of  said  claimant, 
&c.  Trial  had.  [Here  name  the  loitnesses  exainined.]  The  jury  re- 
turned the  following  verdict:  [here  copfj  the  verdict] 

If  the  verdict  is  in  favor  of  the  claimant.,  A B ,  enter  the 

judgment  immediately  after  the  verdict  as  follows : 

"It  is  therefore  considered  by  me,  that  the  said  A B re- 
cover of  said  C D ,  (the  said  party  for  whose  benefit  said 

execution  issued,)  his  costs  herein,  taxed  at dollars cents; 

and  that  said  A B have  restitution  of  said  goods  and  chat- 
tels so  found,  as  aforesaid,  to  belong  to  said  A B ." 

But  if  the  verdict  of  the  jury  is  against  the  right  of  the  claimant^ 
then  enter  the  judgment.^  immediately  after  the  verdict.,  as  folloivs : 

"It  is  therefore  considered  by  me,  that  the  said  C D , 

the  said  party  for  whose  benefit  said  execution  issued,  recover  of 
said  A B ,  the  claimant,  his  costs  herein,  taxed  at dol- 
lars    cents." 

Each  juror  summoned  and  sworn  is  entitled  to  fifty  cents;  and 
the  justice,  sheriff,  constable,  and  witnesses,  the  same  fees  as  in  other 
cases,  for  like  services." 

The  fees  of  the  jury  are  not  immediately  paid  to  them,  but  taxed 
with  the  other  costs. 

A  jury  fee  is  taxed  as  a  part  of  the  costs  of  the  party  in  whose 
favor  the  verdict  is  rendered. 

(n)  Stat.  471.57. 


TITLE  XXXVm. 


WORK  AND  LABOE. 


Where  a  person  is  hired  to  labor  for  a  fixed  tinic,  (as,  for  twelve 
months,  at  ten  dollars  per  month,)  and  leaves  the  service  before  the 
end  of  it,  without  reasonable  cause  and  without  the  agreement  of  the 
other  party,  he  loses  his  right  to  wages  for  the  time  he  may  have 
w^orked.^  A  laborer  or  servant,  so  hired,  may  be  dismissed  by  his 
employer  before  the  expiration  of  the  term,  for  unreasonable  and 
willfuf  disobedience,  or  for  habitual  and  gross  neglect  of  his  duty; 
and  the  employer  will  not  be  liable  for  any  part  of  the  wages.''  For, 
if  the  law  were  otherwise,  a  laborer  who  is  hired  for  a  year,  or  other 
fixed  period,  might,  by  his  own  willful  misconduct,  procure  his  dis- 
missal, and  then  sue  for  the  time  he  worked.  This  would  place  it 
in  the  power  of  the  laborer  to  benefit,  at  any  time,  by  his  own  will- 
ful breach  of  the  contract.  On  the  other  hand,  the  employer  can- 
not, by  his  misconduct,  compel  a  laborer  to  quit  him  before  the  ex- 
piration of  the  term  of  service,  or  dismiss  him,  without  sufficient 
cause,  and  then  refuse  to  pay  him.''(l)     For  if  the  employer  turn 

(a)  1  Wend.  Rep.  514  ;  2  Pick.  Kep.  267  ;  12  (b)  1  Glut.  PI.  3f)3,  led.  1833];  27  Eiig.  C.  L. 

En?.  C.  L.  Uep.  239  1  Palk.  65;  8  Cow.  Kep.  63;  Rep.  190;  3  Id.  339;   1  Wend.  Rep.  514;  19  E. 

2  Mass  Rep.  146;  5  Gill  and  Johns   239;  13  Pick.  C.  L.  Rep.  504;  CUit.  Con.  [Sd  ^m.  Ed.]  171. 

50;  6  Venn.  383;  14  Wend.  257;  7  Gieenl.  70.  76;  (c)  2  East.  145;  4  Camp.  375;  2  Eng.  C.  L. 

2  Penn.  454.  Rep.  354. 


(1)  The  followin.c^  ca.se  was  decided  by  the  supreme  court  of  the  State  of  New 
York:   (8  Cowen's  Rep.  63:) 

rAN'rnr  agai.vst  parks. 

A.ssumpsit  for  work  and  labor;  tried  at  the  Oneida  circuit,  October  10th,  1820, 
before  Williams,  C.  J. 

It  appeared  at  the  trial,  that  the  plaintiff  agreed  with  the  defendant  to  work  for 
him  one  year,  at  ten  dollars  per  month.  He  worked  ten  months  and  a  half,  :ind 
then  left  tlie  emplojment  of  the  defendant,  .saying-  he  would  work  no  more  for  him. 
This  was  proved  by  two  witnesses;  though  one  swore  the  dechuvition  was  qu.'dified, 
that  he  would  work  no  more,  &.C.,  till  he  ascertained  whether  he  could  collect  his 
wages.  Tiie  declaration  was  made  on  Salurd:iy,  when  the  plaintili'  went  away. 
On  Monday  he  returned  and  offered  to  resume  his  work;  but  the  defendant  said  he 
would  employ  him  no  longer. 

Verdict  for  the  plaintiff,  subject  to  the  opinion  of  the  court. 

Curia,  per  SAVAf;K,  C.  J.  In  Joinings  v.  Camp,  (13  Jvhns.  94,)  the  court  laid 
down  this  proposition:  that  a  party  who  enters  into  a  conU-act,  and  performs  part 
of  it,  and  then,  withotit  cause,  and  without  agreement,  or  fault  of  the  parly,  of 
his  own  mere  volition,  abandons  tlic  performance,  he  cannot  maintain  an  :iction, 
on  an  implied  assumpsit,  for  the  labor  actually  performed.  Of  course,  lie  ciuinot 
sue  on  the  express  contract.     The  case  of  McMilltn  v.   Vandcrllp,  (12  Johnf.  165,) 


473  WORK  AND  LABOU.  [Pa/'t  3, 

away  the  laborer  before  the  expiration  of  the  year,  without  a  suffi- 
cient cause,  he  will  be  liable  to  pay  his  wngcs  until  tlie  end  of  the 
year,  even  though  the  wages  be  payable  monthly  or  otherwise.* 

But  if  there  be  a  dissolution  oi"  the  contract  by  mutual  consent, 
the  servant  is  entitled  to  wages  for  the  time  he  served,  and  at  the 
rate  agreed  on.  If  there  is  no  specific  contract,  express  or  implied, 
the  servant  is  entitled  to  recover  wages  for  the  time  he  served. 

Where  there  is  an  agreement  to  do  and  complete  a  particular 
piece  of  v/ork,  whether  the  price  therefor-  be  agreed  upon  or  not, 
the  party  must  fully  perform  the  work  before  he  can  recover  for  his 
labor.  Thus:  A  agreed  to  log  up,  burn,  and  clear,  fit  for  sowing, 
ten  acres  of  land,  by  the  20th  of  Scj)tember,  tor  which  he  was  to  bo 
paid  eight  dollars  \)ev  acre.  He  cleared  a  part  of  the  land,  and  then, 
without  any  default  of  his  employer,  quit  the  work,  and  sued  for  his 
labor.  It  was  decided  by  the  court  that  he  could  recover  nothing."' 
So,  w^here  A  agreed  to  erect  and  finish  a  barn  for  B,  by  a  particu- 
lar day,  for  four  iiundred  dollars,  but  left  it  unfinished  without  the 
consent  of  B,  it  was  decided  that  A  could  recover  nothing  for  what 
he  had  done.*^  So,  where  the  piaintiif  had  contracted  to  put  in 
complete  repair,  for  £lO,  some  chandeliers,  and  returned  them  part- 
ly repaired,  it  was  holden,  that  as  he  had  not  performed  his  part  of 
the  contract,  he  was  not  entitled  to  any  thing,  though  the  repairs 
he  made  were  worth  £d. 

If  a  mechanic  or  other  person  undertake  to  make  a  chattel,  such 
as  a  boat,  carriage,  table,  &:c.,  the  party  for  whom  it  is  made  is  not 
bound  to  take  it  and  pay  for  it,  unless  it  is  made  according  to  con- 
tract; or,  if  there  was  no  express  contract,  he  is  not  bound  to  take 
it  unless  it  is  made  in  a  workmanlike  manner. 

(n)  13  Ens.  C.  L.  l!ep.  44-^;  27  Id.  232.  (c)  2  Mass.  Rep.  147;   14  Id.  282. 

(b)  13  Johns.  Rep.  91;  12  Id.  1G5. 


had  been  previously  decided  on  the  same  principle.  If,  therefore,  in  this  case, 
the  plaintiff  left  the  service  of  tlie  defendant,  witiiout  his  agTeeixient  or  fault,  lie 
violated  his  ccnitract^  and  not  having-  performed  on  his  part,  can  claim  no  payment 
from  tlie  defendant.  In  the  case  last  cited,  performance  of  the  labor  stipulated 
was  held  a  condition  precedent. 

It  is  supposed  tiiat  the  offer  to  return  should  take  this  case  out  of  the  general 
rule-  Bat  if  there  was  a  wanton  desertion  of  the  defendant's  service,  witiiout  his 
fault,  the  plaintiff  was  guilty  of  a  violation  of  the  contract;  and  the  defendant  was 
under  no  obligation  to  receive  him  again.  No  cause  whatever,  is  shown  in  the 
case,  for  the  plaintiff's  conduct. 

Tlie  case  proved  in  Spain  v.  Ariiot,  (2  Stark.  256,)  was  a  stronger  case  for  the 
servant  than  the  one  before  the  court.  The  plaintili' was  a  yearly  servant  to  the 
defendant,  a  farmer:  and  refused,  as  dinner  was  ready,  to  go  with  horses  about  a 
mile,  before  he  had  eaten  his  dinner,  though  ordered  to  go  by  his  master.  On  this 
ground  the  master  dismissed  him  immediately;  and  before  the  end  of  the  year. 
Yet,  L(l.  Elknborough  held  that  the  servant  could  not  recover,  that  the  master  was 
warranted  in  turning  him  away,-  that  after  a  refusal  on  the  part  of  the  servant  to 
perform  his  work,  tiie  master  is  not  bound  to  keep  him  on  as  a  burtliensome  and 
useless  servant  to  the  end  of  the  year.  He  also  held  the  doctrine  of  this  court,  in 
the  cases  cited,  that  full  performance  was  a  condition  precedent.  Faxon  v.  Mans- 
field, (2  Mass.  Hep.  147,)  is  also  in  point  for  the  defence. 
•     The  defendant  is  entitled  to  judgment. 


Title  38.]  WORK  and  labor.  473 

Questions  of  a  very  embarrassing  nature  sometimes  arise  upon 
contracts  for  building. 

If  there  is  a  special  contract,  no  compensation  can  be  recovered, 
as  we  have  already  seen,  unless  the  contract  has  been  entirely  ful- 
filled. 

If  a  carpenter  has  undertaken  to  build  a  building  according  to  a 
particular  plan,  and  for  a  specified  price,  and  he  deviates  from  that 
plan,  or  does  not  complete  the  work,  or  does  it  imperfectly,  or  un- 
skillfully,  it  seems  that  he  cannot  recover  any  part  of  the  stipulated 
compensation;  for  he  has  not  brought  himself  within  the  terms  of  the 
contract.*  But  if  the  employer  see  the  work  go  on  in  a  different 
manner  from  the  terms  of  the  contract,  and  make  no  objection;  or 
if  such  change  or  alteration  be  with  his  assent,  the  carpenter  may 
recover.''(l) 

When  the  special  contract  is  so  entirely  abandoned  by  the  consent 
of  both  parties,  that  it  is  impossible  to  trace  it,  the  workman  shall 
be  permitted  to  charge  for  the  whole  work  done,  according  to  its 
value,  as  if  no  contract  as  to  price  had  been  made;  but  if  not  wholly 
abandoned,  the  contract  shall  operate  as  far  as  it  can  be  traced,  and 
the  extra  work  and  alterations  only,  shall  be  paid  for  at  the  usual 
rate  of  charging.*'(2) 

A  recovery  may  be  had  for  the  value  of  the  work,  when  a  special 
contract  has  been  waved,  or  put  an  end  to,  by  the  agreement  of  the 
parties;  or  where  the  plaintiff' has  been  prevented  by  the  defendant 
from  doing  the  work.*^ 

Whei'e  a  workman  is  employed  to  do  a  particular  job,  and  he 

(a)  3  Taunt.  52;  Story's  Bailm.  287;  see  7  East  assumpsit  for  work  and  labor.  3  T.  R.  590. 

479;  1 1  Et.g.  C.  L.  Rep.  414;  3  Campb.  592,  n.  (h);  8  Jolins.  Rep.  392;  9  Id.  115; 

451:  2  Pliil.  Ev.  83,  -n.  fa).  4  Cow.  Rep.  566. 

(b)  4  Taunt.  474;  4  Wend.  Rep.  285;  4  Cow.       (c)  4  Wend.  Rep.  285;  3  Eng.  C.  L.  Rep.  85; 

Rep.  .564;  7  Pick.  Hep.  181;   in  such  case,  11  Wliea.  Rep.  253;  2  Eiig.  C.  1-.  Rep.  308. 

the  action  should  not  be  on  the  contract,  but       (d)  Wright's  Rep.  705;  5  Oliio  Rep.  352. 


(1)  H  contracted  in  writing'  to  build  a  house  for  L,  at  a  certain  lime,  of  certain 
dimensions,  and  in  a  certain  manner,  on  L's  land,  and  afterwards  built  the  house 
within  the  time,  of  the  dimensions  agreed  on,  but  in  workmanship  and  materials 
varying  from  the  contract.  I^  was  present  almost  every  day  diu-ing  the  building-, 
and  had  an  opportunity  of  seeing  all  the  materials  and  labor,  and  objected  at  times 
to  parts  of  the  materials  and  work,  but  continued  to  give  directions  about  the  house, 
and  ordered  some  variations  from  the  contract.  He  exj^ressed  himself  satisfied 
with  jjarts  of  the  work,  from  time  to  time,  though  professing  to  be  no  judg-e  of  it. 
Soon  after  the  house  was  done  lie  refused  to  accept  it,  but  H  had  no  knowledge 
that  he  intended  to  refuse  it,  luitil  after  it  was  finished.  It  was  held  by  the  court, 
that  H  might  maintain  an  action  of  assiunpslt  for  his  labor  and  the  materials;  and 
that  the  rule  for  estimating  their  value,  was  to  deduct  so  much  from  the  contract 
price  of  the  house,  as  the  house  was  worth  less,  on  account  of  the  variations  from 
the  contract,  in  regard  to  work,  materials,  he.     7  Pick.  181. 

(2)  Mechanics  in  some  towns  have  a  Rill  of  Prices  by  which  tlicy  claim  to  be 
guided  in  estimating  the  value  of  work.  A  Bill  of  Prices  is  no  evidence  of  the 
value  of  work,  unless  made  so  by  the  agreeinent  between  llie  plaintifi"  and  defen- 
dant. When  work  is  to  be  estimated,  and  the  parties  have  not  fixed  U[)()n  its  |)rice, 
the  question  is,  what  was  it  worth  to  do  the  work  in  the  manner  it  is  done,  and  not 
what  have  workmen  agreed  to  ask. 

60 


474  WORK  AND  LABOR.  [Frt.  2,  TUk  38.] 

chooses  to  perform  some  additional  work  without  consulting  his  em- 
ployer, he  cannot  recover  iVtr  such  additional  work.*  And  in  case 
of  a  buildinu;  contract,  where  the  contract  is  departed  from,  the  em- 
ployer is  not  liable  for  additional  work,  merely  from  the  fact  of  his 
havino;  been  made  aware  of  the  de[)arturc  without  dissenting,  unless 
he  were  also  aware,  (by  express  notice,  or  from  necessary  infer- 
ence.) that  the  departure  would  occasion  additional  expense.'* 

Though  there  be  an  agreement,  that  a  specific  sum  shall  be  paid 
for  the  performance  of  any  work,  tlie  claim  may  be  reduced,  by 
showing  that  the  work  or  materials  were  of  an  insufficient  and 
inferior  description  and  value;  and  it  appears  to  be  now  considered 
that  the  demand  may  be  altogether  deleated,  by  showing  that  the 
work  is  totally  inadec|uate  to  answer  the  purpose  for  which  it  was 
undertaken  to  be  [)erformed.''  But  if  the  employer  has  accepted 
and  paid  for  work,  he  cannot  recover  the  money  back,*^  notwith- 
standing that  the  workman  may  be  liable  to  an  action  on  the  con- 
tract, for  not  performing  the  work  in  a  proper  manner. 

If  one  employ  another  to  do  work,  and  nothing  is  said  about  the 
compensation,  the  law  implies  a  promise  to  pay  the  usual  wages,  at 
the  time  and  place  of  performance  for  the  like  services;  and  the 
price  cannot  be  enhanced,  by  showing  that  the  services  were  bene- 
ficial to  the  employer  in  an  extraordinary  degree.^ 

Where  the  laborer  has  failed  to  perform  fully  his  contract,  and 
his  employer  sues  him  for  damages  on  that  account,  the  defendant 
cannot  set  off  a  compensation  for  what  he  has  done  against  such 
claim  for  damages.  Thus:  A  was  employed  to  saw,  by  a  given 
time,  300,000  feet  of  boards,  at  a  stipulated  price  per  1000  feet; 
he  sawed  144,000  feet,  which  were  received  by  his  employer,  and 
failed  to  saw  the  residue.  Suit  was  brought  against  him  for  a 
breach  of  the  contract,  and  it  was  holden  that  he  could  neither  be 
allowed,  as  a  set  off.  a  compensation  for  the  quantity  sawed,  nor  re- 
cover a  compensation  for  his  labor,  having  failed  to  perform  his 
agreement.s(l) 

B  agreed  to  cultivate  A's  land,  find  part  of  the  seed,  harvest  the 
crop,  and  then  take  one  half  of  it  as  a  compensation  for  his  labor, 
and  deposit  the  other  half  in  such  place  as  A  should  direct.  B  cul- 
tivated the  land;  but  before  the  crop  was  harvested,  abscon<lf^d,  being 
insolvent.  It  was  held,  that  B  had  not  such  an  interest  in  the  crop 
as  rendered  it  liable  to  seizure  for  his  debts,  but  that  A  had  a  right  to 
harvest  and  take  the  whole  crop,  as  B  had  abandoned  the  contract.^ 

(a)  Story's  Rnilm.2^7,  2f!n;  20  Eng.  C.  L.  Rep.        (il)  Wrt'tit's  Rop.  591. 

24H;   1  Mcroi<l,22.  (e)  Wri^'lii's  Rfip.  242.  704. 

(b)  Chitty's  •'on.  (:id.  Jim.  Ed.)  168.  n.  f-  (K)   4  Wend.  Rep.  604,  and  see  1  Mason  93, 

(c)  Stat.  8!!5;  <'liiUy's  Con.  168;  14  Johns.  Rep.  (riled  in  Coxe's  Dig.  615.) 

377;   I  Campb.  38.  191.  (li)   10  I'ick.  Rep.  205. 


(I)  The  reader  may  suppose,  that  the  rule  Iicre  laid  down  conflicts  witli  tliat 
which  is  found  on  png'e  428.  Tliere,  however,  the  property  delivered  helong-ed  to 
the  s  Her;  but  the  case  here,  is  one,  wlu-re  the  employer  could  not  redeliver  the 
articles,  witliout  parting'  with  liis  own  property. 


PART  THIRD. 


PART  THIRD. 

CHAPTER  I. 
PROCEEDINGS  IN  CRIMINAL  CAUSES. 

SECTION  I.         JURISDICTION  OF  JUSTICES  IN  CRIMINAL  CASES. 

II.  OF  ARRESTS  WITHOUT  WARRANT, 

III.  FORMS  OF  AFFIDAVITS,   WHEREON    TO   ISSUE  A  COMMON    STATE 

WARRANT,  AND  A  SEARCH  WARRANT. 

IV.  OF  THE  ISSUING  OF  A  COMMON  STATE  WARRANT,  AND  A  SEARCH 

WARRANT,  AND  THE  FORMS  THEREOF. 

V.  OF  THE  SERVICE  AND  RETURN  OF  A  COMMON  STATE  WARRANT, 

AND  A  SEARCH  WARRANT. 

VI.  OF  AN  ADJOURNMENT   OF  THE    TRIAL    OR    EXAMINATION,    AND 

THE  PROCEEDINGS  THEREON,   WITH  FORMS. 

VII.  OF  THE  TRIAL   OR   EXAMINATION,    AND  OF    THE    PROCEEDINGS, 

WHEN  THE  DEFENDANT  FORFEITS  HIS   RECOGNIZANCE. 

VIII.  OF  THE  FINAL  RECOGNIZANCE  OF  THE  ACCUSED  AND  WITNESS- 

ES, AND  OF  THE  COMMITMENT,  WITH  THE  FORMS  THEREOF. 

IX.  OF  THE  DOCKET  ENTRIES   AND  TRANSCRIPTS,  WITH  THE  FORMS 

THEREOF. 


Sec.  I. JURISDICTION  of  justices  in  criminal  CASES. 

Justices  of  the  peace  have  jurisdiction  in  criminal  cases  through- 
out the  county  in  which  they  are  elected  and  reside;  and  are  bound 
by  law  to  preserve  the  peace  therein.  They  are  authorized  on 
view,  or  on  complaint  made  on  oath  or  affirmation,  to  cause  every 
person  charged  with  the  commission  of  a  crime  or  breach  of  the 
criminal  law,  to  be  arrested  and  brought  before  them,  to  incjuire 
into  the  complaint,  and  fine,  commit  to  jail,  discharge,  or  recognize, 
as  the  case  may  require,  or  the  statute  relating  to  the  offence  may 
prescribe.* 

(a)  Stat.  537,51. 


478  PROCEEDINGS  IN  CRIMINAI-  CAUSES.  [P?7,  3,  Ck.  1, 

Tlie  jurisdiction  of  justices  of  the  peace  in  criminal  cases,  maybe 
divided  under  three  heads: 

First  —  Where  he  arrests,  or  causes  a  person  to  be  arrested,  and 
merely  determines  whether  it  is  proper  that  the  accused  should  an- 
swer the  charjre  in  the  court  of  common  pleas; 

Second —  Where  he  assesses  a  fine,  and  renders  judgment  there- 
for; and 

Third — Where  he  requires  a  party  to  enter  into  a  recognizance 
to  keep  the  peace. 

This  chapter  will  contain  a  brief  summary  of  the  law  relating  to 
the  powers  and  duties  of  justices  of  the  peace,  in  cases  which  are 
finally  acted  upon  by  the  grand  jury. 

Sec.  II. OF  ARRESTS  WITHOUT  WARRANT. 

A  justice  of  the  peace  may,  as  has  already  been  stated,  appre- 
hend, or  cause  to  be  apprehended  by  word  only,  any  person  com- 
mitting a  crime  or  a  breach  of  the  peace  in  his  presence.* 

The  person  arrested  is  then  tried  upon  evidence,  as  in  other 
cases. 

A  constable  not  only  may,  but  it  is  his  duty  to  arrest  and  bring  to 
justice  felons  and  disturbers  of  the  peace,  to  suppress  riots,  and  keep 
and  preserve  the  peace  within  his  county.''  When,  therefore,  any 
breach  of  the  criminal  law^  is  committed  in  the  presence  of  a  con- 
stable, he  must  arrest  the  ofiender,  and  take  him  beibre  a  justice. 
So,  if  in  attempting  to  suppress  a  fight,  riot,  or  other  breach  of  the 
peace,  the  constable  be  assaulted  or  resisted,  he  should  immediately 
arrest  those  who  assault  or  resist  him.*^ 

In  general,  if  an  affray,  or  other  minor  offence  not  punishable  by 
imprisonment  in  the  penitentiary,  be  not  committed  in  his  presence, 
he  would  have  no  authority  to  arrest  upon  the  mere  charge  and. 
information  of  a  citizen,  but  should  first  procure  a  warrant  from  a 
justice. 

But  if  petit  larceny,  or  a  crime  punishable  by  imprisonment  in 
the  penitentiary,  has  in  fact  been  committed  by  the  person  accused, 
the  arrest  may  be  made  by  any  person,  whether  an  officer  or  not, 
without  warrant,  and  whether  there  is  time  to  obtain  one  or  not.'' 
If  an  innocent  person  is  arrested,  upon  suspicion,  by  a  private  indi- 
vidual without  warrant,  such  individual  is  excused,  if  a  petit  larce- 
ny, or  an  oftence  punishable  by  imprisonment  in  the  penitentiary, 
was  in  fact  committed,  and  there  was  reasonable  ground  to  suspect 
the  person  arrested.  But  if  no  ofience  was  in  fact  committed  by 
any  one,  and  a  private  individual  arrests  without  warrant,  such  ar- 
rest is  illegal,  though  a  constable  would  be  justified,  even  in  such 
case  without  w'arrant,  if  he  acted  upon  information  from  another, 
which  he  had  reason  to  rely  on.®     The  mere  suspicion,  however,  of 

(a)  Stat.  5f?7,  $1;  4  Blac.  Com.  292.  (e)  Chitty's  Grim.  Law,  15;  3  Wciid.  Rep.  353; 

(b)  Slat.  541,  §25.  Dout:.  359;  4  Ular.  Com.  n.  (14);  3  Eng. 

(c)  Bac.  Ah.,  Title  Constable,  (C).  C.  L.  Rep.  Ib3,  note  liy  the  Reporter;  3 

(d)  3  Wend.  Rep.  353.  Campb.  420;  6  T.  R.  315. 


§2,  3.]  PROCEEDINGS  IN  CRIMINAL  CAUSES.  479 

the  constable,  without  a  warrant,  and  without  any  direct  charge  be- 
ing made  by  a  citizen,  and  where  no  offence  was  in  fact  commit- 
ted, will  not  justify  the  officer  in  arresting  an  innocent  person. 

The  mere  act  of  arresting  without  a  warrant,  when  there  is  a 
direct  charge  made  to  the  officer  by  a  citizen,  or  reasonable  suspi- 
cion before  his  eyes,  does  not  oblige  him  to  continue  the  detention 
of  the  prisoner  till  brought  before  a  magistrate.  The  charge  may 
be  retracted,  or  his  suspicions  may  vanish  in  the  way;  and  as 
these,  in  such  case,  are  the  only  grounds  for  the  arrest,  so  the  ab- 
sence of  them  is  a  sufficient  reason  for  the  release  of  the  accused.* 
His  duty  is  merely  that  of  a  zealous  and  faithful  servant  of  the 
law. 

These  principles  of  law  are  established  for  the  purpose  of  pre- 
venting the  escape  of  criminals;  the  very  small  evil  of  a  temporary 
arrest  in  case  of  innocence,  being  infinitely  compensated  by  the 
advantage  to  the  public  peace,  in  having  crimes  promptly  prevented, 
and  criminals  instantly  restrained. 

When  an  offender  is  not  likely  to  abscond  before  a  warrant  can 
be  obtained,  it  is,  in  general,  better  to  apprehend  him  by  a  warrant 
than  for  a  private  person  or  officer  to  arrest  him  of  his  own  accord. 

When  it  is  certain  that  an  offence  punishable  by  imprisonment 
in  the  penitentiary,  has  been  committed,  or  that  a  dangerous 
wound  has  been  given,  and  the  offender  being  pursued,  takes  re- 
fuge in  his  own  house,  either  a  constable  or  a  private  individual, 
may,  without  any  warrant,  break  open  his  doors,  after  demand  of 
admittance. 


Sec.  III. FORMS  OF  affidavits,    WHEREON    TO  ISSUE  COMMON  STATE 

WARRANTS,  AND  A  SEARCH  WARRANT. 

Form  of  Affidavit  for  a  common  Stale  Warrant. 

The  State  of  Ohio, county,  ss. 

Before  me,  G H ,  one  of  the  justices  of  the  peace  for 

said  county,  personally  came  A B ,  who  being  duly  sworn 

according  to  law,  deposeth  and  saith,  that  on  or  about  the  '- —  day 

of ,  in  the  year ,  at  the  county  of ,  [Jicre  describe  the 

crime  or  offence  committed.,  in  the  loords  of  the  statute  defmiii'y  the  of- 
fence., and  as  nearly  according  to  the  facts  as  the  case  ivilt  admit;] 
and  this  deponent  says,  [or,  does  verily  believe,  as  the  case  may  be,] 

that  one  C D is  guilty  of  tiie  fact  charged;  [or  say,  was 

aiding  and  assisting  in  the  commission  thereof,  as  the  case  may  be;] 
and  further  this  deponent  saith  not. 

[Signed,]         A B . 

Sworn  to,  and  subscribed,  before  me,  at  the  county  aforesaid,  this 
day  of ,  A.  D.  1 8—. 

G ]  r ,  J.  i>. 


(a)  3  Eng.  C.  h.  Rep.  1C3,  note. 


480  PROCEEDINGS  IN  CRIMINAL  CAUSES.  [Pr^.  3,  C/i.  1, 


Form  of  Affidnvil  for  a  Search  Wai-rant.{\) 

The  vStatc  of  Oliio, county,  ss. 

Before  me,  G H ,  one  of  the  justices  of  the  peace  for 

said  county,  personally  came  A B ,  who,  being  duly  sworn 

according  to  law,  deposeth  and  saith,  that  on  or  about  the day 

of ,  in  the  year ,  at  the  county  of ,  and  within  ninety 

days  Inst  past,  the  following  goods  and  chattels,  to  wit:  [liei'e  par- 
ticithirJy  describe  the  artich's^  according  to  the  fact-]  have  been  by 
some  person  or  persons  feloniously  taken,  stolen  and  carried  away, 
out  of  the  house,  or  from  the  premises  of  A —  B ,  of  said  coun- 
ty; and  that  the  said  goods  and  chattels,  as  he  verily  believes,  [or 
some  part  thereof,  stating  it  according  to  tlteheiiefaf  the  affiant  I]  are 

concealed  in  the  \_here  state  the  place  of  concealment^  of  one  C 

D ,  of  the  township  of ,  in  the  county  of . 

[Signed,']         A B . 

Sworn  to,  and  subscribed,  before  me,  at  the  county  aforesaid,  this 

day  of ,  A.  D, . 

G H ,  J.  p. 


Sec.  IV.  —  OF  the  issuing  of  a  common  state  warrant,  and  search 

WARRANT,  AND  THE  FORMS  THEREOF. 


The  warrant  must  not  be  issued  until  an  afhdavit,  (the  forms  of 
which  have  been  given  in  the  preceding  section,)  has  been  sworn 
to.  It  does  not  follow,  because  the  proper  affidavit  will  be,  or  has 
been  filed,  that  the  justice  must  issue  the  warrant.  Upon  that  sub- 
ject, he  may  exercise  his  discretion;  but  he  cannot  withhold  the 
warrant'if  there  are  grounds  to  suspect  that  the  criminal  offence 
charged  in  the  affidavit  has  been  committed.  It  is  the  duty  of  the 
justice  to  consider  all  the  circumstances  sworn  to,  and  not  to  grant 
any  warrant,  notwithstanding  the  alfidavit,  without  such  probable 
cause  as  might  induce  a  discreet  and  impartial  man  to  suspect  the 
person  accused  to  be  guilty.^ 

Form  of  a  common  State  Warrant. 

The  State  of  Ohio, Connty,  ss. 

To  any  constable  of  said  county,  greeting: 
Whereas,  complaint  has  been  made  before  me,  one  of  the  justices 
of  the  peace  in  and  for  the  county  aforesaid,  upon  the  oath  of  A — 

(n)  4  Black.  Com.  290;  1  Cliit.  Crim.  Law,  34. 


(1)  The  form  this  affidavit  seems  to  be  prescribed  in  the  recital  of  the  search 
warrant,  Stat.  543. 


§4.]  PROCEEDINGS  IN    CRIMINAL  CAUSES.  4Sl 

B ,  that  C D ,  late  of  the  county  aforesaid,  did, 

on  or  about  the day  of ,  A.  D.  1 8 — ,  at  the  county 

,  \Jtci-e  state  the  crime  or  offence^  in  the  uords  of  the  statute.    The 

description  must  show  suhstantiaUy  a  ci'iminal  matter  for  which  a 
justice  of  the  j)eace  has  juinsdiction  to  issue  a  warrant.^  And  here 
also  state^  whether  it  loas  committed  hij  the  accused  as  principal.,  or 
accessory.,  according  to  the  afjidavit^ 

These  are  therefore  to  command  you  to  take  the  said  C —  D — , 
if  he  [or  she]  be  found  in  your  county;  or  if  he  [or  she,]  shall  have 

fled,  that  you  pursue  after  the  said  C D ,  into  any  other 

county  within  this  State,  and  take  and  safely  keep  the  said  C 

D ,  so  that  you  have  his  [or  her]  body  forthwith  before  me,  [or 

in  cases.,  ivhere  the  accused  may  be  taken  before  a  justice  of  the  peace 
other  titan  the  one  icho  issued  the  warrant.,  add'\  or  some  other  jus- 
tice, to  answer  the  said  complaint,  and  be  further  dealt  with  accord- 
ing to  law. 

Given  under  my  hand  and  seal,  this day  of ,  in  the 

year . 

G H ,  J.  p.  (Seal.) 


FORM  OF  A  SEARCH  WARRANT. 

The  State  of  Ohio, county,  ss. 

To  any  constable  of  said  county,  greeting: 

Whereas,  it  appears  to  me,  G H ,  one  of  the  justices  of 

the  peace  in  and  for  the  said  county,  that  the  following  goods  and 
chattels,  to  wit:  [Here  describe  the  articles  according  to  the  fact.! 
have  been,  within  ninety  days  last  past,  by  some  person  or  persons, 
feloniously  taken,  stolen,  and  carried  away,  out  of  the  house,  or 

from  the  premises  of  A B ,  of  the  county  of ,  and  that 

the  said  A B doth,  on  oath,  [or  affirmation,  as  the  case 

may  he,']  declare  that  he  [or  she,]  verily  believes  that  the  said  goods 
and  chattels  [or  some  part  thereof,  to  be  stated  according  to  the  be- 
lief of  the  affiant.']  are  concealed  in  the  [liei^e  name  the  place  of  con- 
cealment!] of  one  C D ,  of  the  township  of ,  in  the 

county  of , 

These  are  therefore  to  command  you,  in  the  name  of  the  State  of 
Ohio,  with  the  necessary  and  proper  assistance,  to  enter  in  the  day 
time  into  [here  describe  the  house.,  or  other  place.,  as  above.,]  of  the 

said  C D ,  of  the  township  and  county  aforesaid,  and  there 

diligently  search  for  the  said  goods  and  chattels;  and  if  the  same 
or  any  part  thereof  be  found,  upon  such  search,  that  you  bring  the 
goods  so  found,  and  also  the  body  of  C D ,  forthwith  be- 
fore me,  or  some  other  justice  of  tiie  peace  for  said  county,  to  be 
disposed  of,  and  dealt  with  according  to  law. 

Given  under  jny  hand  and  seal,  this day  of ,  in  tiic 

year . 

G H ,  J.  I'.  (Seal.) 

(a)  Btat.  436,11. 

Gl 


X 


482  I'ROCEKUINGS  IN   i.  IIIMINAL  (  AUSKS.  [Prt.  3,  C/t.  1, 

Sli;C.   V. OF  THE  SERVICK  AND  IlKTailN  Ul-'  A  (  OMMON  STATE  WARRANT, 

AND  A   SEARCH   W  ARllANT.(l) 

A  l.'iwfiil  warrant  iVom  a  justice  who  iias  juiisdictitin  of  the  cause, 
will  justify  the  olficcr  who  executes  it,  although  inegularly  award- 
ed; but  tiie  ollicer  is  nut  excused,  if  ti\e  justice  who  issued  the  war- 
rant have-  no  jurisdiction  of  the  otlencc.* 

In  all  cases"  where  an  arrest  is  made  by  virtue  of  u  warrant,  it  is 
proper  for  the  oOlcer  to  produce  his  warrant,  if  demanded;"  and  it 
is  his  duty  to  do  so  where  he  executes  the  warrant  out  of  his  coun- 
ty, or  if  he  be  not  generally  known.'' 

In  no  case  can  tlie  breaking  open  of  a  door  be  justified,  to  make 
an  arrest,  unless  the  otlicer  or  other  person  first  signify  to  those  in 
the  house  the  cause  of  his  coming,  and  request  them  to  give  him 
admittance.*^  The  breaking  an  outer  door  is,  in  general,  so  violent, 
dangerous,  and  obnoxious  a  proceeding,  that  it  siiould  be  adopted 
only  in  extreme  cases,  where  an  immediate  arrest  is  retjuisite.* 

The  doors,  however,  may  be  broken  open,  if  the  oflender  cannot 
otherwise  be  taken,  under  a  Avarrant  for  any  oilence  made  punish- 
able by  imprisonment  in  the  penitentiary,  or  if  the  offence  be  an 
actual  breach  of  the  peace ;  but  there  seems  no  well  founded  au- 
thority for  extending  this  right  to  other  ofiences,  of  a  minor  nature, 
unaccompanied  by  violence.^  In  the  cases  above  mentioned,  where 
doors  may  be  broken  open,  the  warrant  is  a  complete  justification 
to  the  officer  acting  in  good  faith  under  it,  even  though  the  party 
accused  should  prove  his  innocence.^ 

The  above  rules  as  to  breaking  doors,  are  confined  to  outward 
doors  and  windows;  for  if  the  officer  find  the  outward  door  open,  or 
it  be  opened  to  him  from  within  and  he  enter  that  way,  he  may 
break  open  inner  doors,  after  proper  demand  and  refusal,  if  it  be 
necessary  to  execute  any  w^arrant.^  And  this  privilege  only  extends 
to  those  cases  where  the  occupier,  or  any  of  his  f;unily,  who  have 
their  domicil,  or  ordinary  residence  there,  are  the  objects  of  the 
arrest:  for  if  a  stranger,  whose  ordinary  residence  is  elsewhere, 
upon  piu-suit  take  refuge  in  the  house  of  another,  such  house  may 
be  broken  open,  after  the  usual  demand;  but  then  it  is  at  the  peril 
of  the  officer  that  the  party  against  whom  he  has  the  warrant  be 
there,  for  otherwise  he  will  be  a  trespasser.' 

It!is  the  duty  of  the  officer,  when  he  has  a  search  warrant,  to 
lireak  open,  after  demand  made,  the  outer  door  of  the  house  men- 
tioned in  the  warrant;  not  using,  how^ever,  any  unnecessary  force, 
or  doing  any  wanton  injury.  If  the  goods  mentioned  in  the  search 
warrant  cannot  be  found,  the  party  accused  cannot  be  arrested 
upon  the  warrant. 

(a")  Wrislit's  Rep.  710;  6  Oliio  Rep.  144;  Com.  (c)  Hale's  P.  C.  116. 

Diff.  Imprid.  11.  8  aud  9.  (e)  1  Chit.  C.  L.  56. 

(h)  8  T.  R.  188.  '  (!,')  1  East  P.  C.  322;  2  Hale's  P.  C.  117;  1 

(d)  Burns'  Jus.  106;  2  Hawk.  P.  C.  86;  but  sec  Chit.  C.  L.  54.  56. 

2  Barn,  and  Aid.  Rep.  58|l  (i)  1  East  P.  C.  323. 


(1)  As  to  further  proceeding's  on  a  search  warrant,  see  Stat.  542,  §30. 


X 


§5.]  PROCEEDINGS  IN  CRIMINAL  CAUSES.  483 

A  caaimon  state  warrant  authorizes  the  officer  to  pursue  the  ac- 
cused into  any  county  witliin  the  State.* 

After  a  party  has  once  actually  been  arrested,  and  escapes  from 
custody,  any  door  may  be  broken  open  to  retake  him,  after  proper 
demand  of  admittance.'' 

If  Jthe  constable  take  the  wrong  person  on  a  warrant,  he  will  be 
a  tre^passer.*^ 

When  the  officer  has  made  the  arrest,  he  must  immediately  take 
the  party  to  the  justice  who  issued  the  warrant,  if  such  be  its  com- 
mand; but  if  tiie  warrant  direct  the  constable  to  bring  the  accused 
befoie  the  juj^tice  who  issued  it,  or  some  other  justice,  the  constable 
may  act  accordingly.  The  acccused  has  no  ri^ht,  in  such  case,  to 
direct  before  whom  he  shall  be  taken. 

Where  an  officer  has  a  warrant  against  a  person  accused  of  an 
offence  |)unisliable  with  imprisonment  in  the  penitentiary,  if  the 
party  accused  lly,  and  endeavor  to  resist  the  attem])t  to  apprehend, 
or  escape  after  his  capture,  and  he  be  killed  in  the  resistance,  or 
pursuit,  an  absolute  necessity,  and  that  alone,  will  justify  the  officer.* 
But  if  the  warrant  be  for  a  less  offence,  and  a  mere  breach  of  the 
peace,  the  constable  killing  the  party  in  the  attempt  to  take  him, 
will  be  guilty  of  manslaughter,  unless  indeed  he  do  it  in  self-defence:'* 
for  the  officer  has  a  right  to  repel  force  with  force,  whilst  in  the  le- 
gal discharge  of  his  duty. 

When  a  legal  warrant  is  tendered  by  a  magistrate  to  a  constable, 
he  is  bound  to  receive  it,  and  it  must  be  immediately  executed  by 
him;  and  if  a  constable  neglect  or  delay  to  serve  it,  when  in  his 
povv'er,  either  alone  or  by  calling  upon  assistance,  and  the  offence 
charged  is  punishable  with  death,  or  imprisonment  in  the  peniten- 
tiary, the  constable  will  subject  himself  to  a  fine  not  exceeding  five 
hundred  dollars,  or  to  imprisonment  in  the  county  jail  not  exceed- 
ing ten  days,  or  both,  at  the  discretion  of  the  court  of  common 
pleas.^  When  the  constable  is  thus  guilty  of  neglect  or  delay  in 
serving  any  other  legal  warrant  issued  under  a  charge  for  a  less  of- 
fence than  those  above  mentioned,  he  subjects  himself  to  the  same 
punishment,  except  that  the  fine  cannot  exceed  one  hundred  dollars.^ 
A  conviction  for  either  of  these  offences,  creates  an  immediate  for- 
feiture of  the  office.*^ 

A  constable  is  liable  to  the  jiunishment  first  above  mentioned,  if 
he  voluntarily  suffer  his  prisoner  to  escape  or  go  at  large. '(1) 

The  return  to  a  common  warrant  may  be  the  same  as  to  a  ca- 

},ias.(2) 

fa)  Slat.  541,^25.  (e)  Slat.  249,  $93. 

(())  1  Chit.  C.  L.  58.  (g)  Id.  ib.  $94. 

(c)  Com.  ni:;.  Itiipris.  11.  7.  (Ii)   I<J.  il).  $9.'). 

{dj  I  Chit.  C.  L.  62.  (i;  Id.  245,  $73. 


(1)  For  the  further  provisions  of  the  criminal  Jaw  in  rchition  to  tlic  misnonduct 
of  justices  and  coiistuljlcs,  see  Slut.  242,   243. 

(2)  See  the  forms,  pa{je  37. 


484  PROCEEDINGS  IN  CRIMINAL  CAUSES.  [Prt.  3,  C/(.  1, 


The  return  to  a  search  warrant  may  be  in  the  form  following: 

January  3,  1047.    I  searched  for  the  goods  described  in  the  with- 
in warrant,  at  the  place  therein  mentioned,  and  found  the  following: 

.     I  have  the  said  goods  last  mentioned,  and 

the  body  of  the  within  named  C D- 


I- J ,  Constable, 

Fees, . 

January  3,  1 847.     I  made  search  as  required  l)y  the  within  war- 
rant.    None  of  said  goods  can  be  found. 

I J ,  Constable, 


Sec.  \I.  —  OF  an  adjournment  of  the  trial,  or  examination,  and 

THE  PROCEEDINGS  THEREON,  WITH  FORMS. 


If  it  becomes  necessary  by  reason  of  the  absence  of  a  material 
witness,  or  other  just  cause,  to  postpone  or  delay  the  trial,  or  exam- 
ination of  the  accused,  the  same  may  be  done  from  time  to  time; 
but  the  whole  term  of  such  delay  must  not  exceed  four  days  from  the 
time  the  accused  is  imf)risoned,  or  from  the  time  he  enters  into  tlie 
first  recognizance  for  his  appearance.* 

If  the  justice  adjourn  over  the  cause,  and  the  offence  be  a  bail- 
able one,  he  may,  at  his  discretion,  commit  the  party  accused  to 
prison,  or  require  him  to  enter  into  a  recognizance  with  good  and 
sufficient  security,  in  such  sum  as  the  justice  may  deem  reasonable, 
conditioned  for  his  appearance  before  such  justice,  at  a  certain  day 
and  hour  named  in  the  recognizance,  to  answer  the  charge,  and  to 
not  depart  without  leave.'' 


FORM  OF  A  RECOGNIZANCE  FOR  APPEARANCE  BEFORE  A  JUSTICE. 


FoUolo  the  forjn  of  the  recognizance  in  the  Sth  section  of  this  chapter, 
from  the  beginning  to  the  *,  andfroyn  that  point  proceed  asfoUoivs:  be- 
fore me,  at  my  office,  in  the  township  of ,  in  the  said  county,  at 

—  o'clock,  p.  M.  [or  A.  M.  as  the  case  may  fc,]  on  the  —  day  of , 

in  the  year  aforesaid,  then  and  tiiere  to  answer  to  a  charge  of  [liere 
name  the  crime  or  offence  icith  which  the  party  is  charged,^  and  not 
depart  without  leave;  then  this  recognizance  to  be  void,  otherwise 
to  be  and  remain  in  full  force  and  virtue  in  law. 

Taken  and  acknowledged  before  me,  on  the  day  and  year  first 
above  written. 

^  G n ,  J.  p, 

(a)  Stat.  542,  $31,  and  540,  522.  (b)  Id.  ib.  J31. 


§6,7.]  PROCEEDINGS  IN  CRIMINAL  CAUSES.  485 


Form  of  Com^tment^  pending  a  trial.^ 

The  State  of  Ohio, county,  ss. 

To  the  keeper  of  the  jail  in  the  county  aforesaid,  greeting. 

Whereas,  C D ,  of  the  county  aforesaid,  has  been  arrest- 
ed on  the  oath  [or  affirmation]  of  A B ,  for  [Jiere  state  the 

crime  or  offence^  according  to  the/act^]  and  has  been  brought  before 

me,  G H ,  one  of  the  justices  of  tlie  peace  in  and  for  said 

county,  for  trial,  ^vhich  trial  has  been  necessarily  postponed  by 
reason  of  the  [/^cre  state  the  absence  of  a  material  icitness^  or  other 
cause  of  del  ay  ^  according  to  the  fact{\     Therefore  I  command  you, 

in  the  name  of  the  State,  to  receive  the  said  C D into  your 

custod;y',  in  the  jail  of  the  county  aforesaid,  there  to  remain  till  dis- 
charged by-due  course  of  law. 

Given  under  my  hand  and  seal,  this  day  of ,  in  the 

year  1 8 — .  G H ,  j.  p,  (Seal.) 


Form  of  Subpoena  for  a  Witness. 

The  State  of  Ohio, county,  ss.  ^^ 

To  any  constable  of  said  county,  greeting: 

You  are  hereby  commanded  to  summon  W S ,  to  be  and 

appear  before  me,  G H ,  one  of  the  justices  of  the  peace  in 

and  for  said  county,  at ,  forthwith,  and  there  to  give  testi- 
mony and  the  truth  to  say,  touching  a  certain  complaint  made  on 
behalf  of  the  State,  against  C D ;  and  hereof  fail  not  un- 
der the  penalty  of  one  hundred  dollars;  and  have  you  then  there 
this  writ. 

Given  under  my  hand  and  seal,  this day  of ,  in  the 

year  1 8 — .  G 11 ,  j.  p.  (Seal.) 

The  mode  of  serving  and  returning  subpoenas,  and  proceeding 
against  witnesses  for  failing  to  attend,  or  refusing  to  answer  ques- 
tions, has  already  been  stated.(l) 

The  form  of  the  return  to  the  writ  of  commitment  is  the  same  as 
to  a  mittimus,  which  has  been  heretofore  given.(2) 


Sec.  VII. OF  THE  TRIAL  OR  EXAMINATION,  AND  OF  THE  PROCEEDINGS 

WHEN  THE  DEFENDANT  FORFEITS  HIS   RECOGNIZANCE. 


'  .  If  the  defendant  has  been  recognized,  and  fail  to  appear  on  the 
day  of  trial,  or  otherwise  fail  to  comply  with  the  conditions  of  tiic 

(a)  Stat.  546. 


(1)  See  pages  54.  00.  (2)  See  papfc  52. 


40G  raocERDiNos  in  crimunal  causks.        [Prl.  3,  C/i.  1, 

rccognizanco,  the  justice  must  note  tlie  luct  f))i  his  docket  and  trans- 
mit a  transcript  of  his  ])roceedino;s  to  the  clerk  of  the  court  of  com- 
mon pleas,  or  the  ])rosecuting  attorney  *  Another  warrant  may  ])C 
immediately  issued  after  tlie  forfeiture  of  the  recognizance,  and  the 
defendant  taken,  tried,  recognized,  committed,  or  discharged,  as  if 
no  forfeiture  had  taken  place.  His  subsccjuent  arrest  on  a  new 
warrant  will  not  excuse  the  justitie  from  transmitting  to  the  court 
of  common  pleas,  his  proceedings  on  the  warrant  first  issued.  If 
the  defendant  is  commited  to  jail  to  await- his  trial  before  the  jus- 
tice, a  precept  may  be  isued  to  the  jailor  for  the  body  of  the  de- 
fendant.(l) 

The  party  injured  by  the  defendant  may  be  a  witness. 
The  justice  should  have  before  him  the  section  of  the  statute  de- 
scribing the  ollence  of  which  the  deibndant  is  accused,  and  see  that 
the  evidence  sustains  that  description.      The  witnesses  against  the 
defendant  should  be  first  examined. 

The  defendant  must  be  discharged  if  the  justice  is  entirely  satis- 
fied of  liis  innocence. (2)  If  the  justice  be  not  entirely  satisfied  that 
the  defendant  is  guilty,  yet,  if  the  circumstances  proved  against  the 
defendant  arc  j^ositively  suspicious,  and  such  as  render  his  guilt  pro- 
bable, and  the  crime  be  an  indictable  offence,  the  justice  should  re- 
quire him  to  enter  into  a  recognizance,  or  commit  him  to  prison.** 
In  those  cases,  iiowever,  in  which  the  justice  is  authorized  to  fine, 
he  should  re{[uire  the  same  satisfactory  evidence  that  would  author- 
ize a  petit  jury  to  return  a  verdict  of  guilty. 


Sec.  VIII.  —  OF  THE  fijvai,  recognizance  of  the  accused  and  wit- 
nesses, AND  OF  THE  COMMITMENT,   WITH  THE  FORMS  THEREOF. 

All  offences  are  bailable,  excejit  when  the  punishment  is  capital. 

If  the  justice  find  the  party  accused  guilty,  and  the  offence  be 
bailable,  he  sliould  require  him  to  enter  into  a  recognizance  for  his 
appearance  at  the  next  court  of  common  pleas;  or  if  the  defendant 
neglect  or  refuse  to  give  such  recognizance,  he  should  issue  a  mit- 
tinius  for  his  commitment  to  the  jail  of  the  county.*^ 

The  recognizance  should  be  for  such  an  amount,  as  will  be  like- 
ly to  insure  a  compliance  with  its  conditions.  The  justice  ought, 
therefore,  in  determining  its  amount,  to  take  into  consideration  the 
nature  of  the  offence,  and  the  character  and  property  of  the  defend- 
ant. A  wealthy  individual,  charged  with  a  penitentiary  ofience, 
would  forfeit  his  recognizance,  if  the  amount  were  riot  such  as 
would  be  oppressively  large  when  required  of  a  poor  and  obscure 
individual.  If,  by  the  commission  of  the  crime,  the  accused  has 
obtained  property,  and  retains  it,  the  justice  should  require  a  re- 

(a)  Stat.  542,  $32.  (b)  1  Chit.  C.  L.  89.  (c)  Stat.  537,  ^  I. 

(1)  The  precept  can  be  reacHlv  made  out  fi-om  tlic  form  g-iven  on  page  53. 

(2)  A  discharge,  unless  by  the  court  of  common  picas,  will  not  bar  another  pro- 
secution against  the  defendant  for  the  same  crime.      JVright's  Rep,  450. 


§8.]  I'ROCEEIINGS  IN  CRIMINAL  CAUSES,  487 

cognizance  at  least  for  a  larger  amount  than  the  value  of  such  pro- 
perty. The  oifender  should  not  be  permitted  to  make  the  crime 
itself  an  instrument  for  his  escape. 

The  amount  should  not  be  oppressive,  but  never  so  small  as  to 
hold  out  an  inducement  to  the  accused  to  forfeit  his  recognizance. 

If  the  defendant  be  committed  or  I'ecognized,  in  either  event,  the 
justice  should  never  omit  to  take  the  recognizance  of  those  witnes- 
ses on  behalf  of  the  State,  whose  testimony  may  be  material.* 

All  the  recognizances  must  be  transmitted  or  delivered  by  the 
justice  to  the  clerk  of  the  court  or  the  prosecuting  attorney,  before 
the  commencement  of  the  next  term  of  the  court;  or  if  they  are 
taken  in  term  time,  they  should  be  delivered  or  transmitted  forth- 
with.'' 

If  a  person  is  brought  before  a  justice,  charged  with  the  commis- 
sion of  any  criminal  otfence  against  the  laws  of  any  other  State,  or 
of  any  of  the  territories  of  the  United  States,  the  proofs  must  be 
heard  as  in  other  cases,  and  if  found  sufficient,  the  accused  must  be 
committed  to  the  jail  of  the  county,  or  the  justice  may  cause  him  to 
be  delivered  to  some  suitable  person,  to  be  removed  to  the  proper 
place  of  jurisdiction.*^  It  is  probable  that  the  'suitable  person'  in- 
tended by  the  statute  is  one  wiio  holds  a  warrant  from  the  governor 
of  this  State. 


FORM  OF  THE  RECOGNIZANCE  OF  THE  PARTY  ACCUSED. 


Tlie  State  of  Ohio, county,  ss. 

Be  it  remembered,  that  on  the day  of in  the  year 


C D and  E F ,  personally  appeared  before  me, 

G H ,  one  of  the  justices  of  the  peace  in  and  for  the  county 

aforesaid,  and  jointly  and  severally  acknowledged  themselves  to  owe 

the  State  of  Ohio  the  sum  of dollars,  to  be  levied  of  their 

goods  and  chattels,  lands  and  tenements,  if  default  be  made  in  the 
condition  following,  to  wit: 

The  condition  of  this  recognizance   is  such,   that  if  the  above 

bound  C D shall  personally  be  and  appear  *  before  the 

court  of  common  jileas,  on  the  first  day  of  the  term  thereof,  next  to 
be  holden  in  and  for  the  county  aforesaid,  [or  if  the  recognizance  is 
taken  in  term  time^  then  it  must  require  the  party  to  appear  forth- 
with^'] and  then  and  there  to  answer  to  the  charge  of  \  [here  name 
the  crime  or  offence  with  lohich  the  party  is  charged^  and  abide  the 
judgment  of  the  court,  and  not  depart  without  leave,  then  this  re- 
cognizance shall  be  void;  otherwise  it  sliall  bo  and  remain  in  full 
force  and  virtue  in  law. 

Taken  and  acknowledged  before  mc,  on  the  day  and  year  first 
above  written. 

C II ,  J.  p. 

(n)  Stat.  537,  $1.  (cT Id.  .536,  535,  30. 

(1.)  Id.  539,  $20.  (d)  Id.  oil. 


4G8  PROCEEDINGS  IN  CRIMINAL  CAUSES.  [Prt.  3,  CIl.  1, 


FOUM  OF  RECOGNIZANCE  OF  WITNESSaS.*(l) 

The  State  of  Ohio, county,  ss. 

Be  it  remembered,  that  on  the  —  day  of ,  in  the  year , 

E F 1  ^naming  the  witness  who  is  recognized!]  personally 

aj^peared  before  me,  G H ,  one  of  the  justices  of  the  peace 

in  and  for  the  comity  aforesaid,  and  acknowledged  himself  to  owe 

the  State  of  Ohio  the  sum  of dollars,  to  be  levied  of  his  goods 

and  chattels,  lands  and  tenements,  if  default  be  made  in  the  condi- 
tion following,  to  w^it: 

The  condition  of  this  recognizance  is  such,   that  if  the  above 

bounden  E F shall  personally  be  and  appear  before  the 

court  of  common  pleas,  on  the  first  day  of  the  term  thereof  next  to 
be  holden  in  and  for  the  county  aforesaid,  [or  say  forthwith,  if  the 
case  require  ?/,]  to  give  evidence  and  the  truth  to  say,  on  behalf  of 
the  State,  touching  such  matters  as  shall  then  and  there  be  inquired 
of  him,  [or  her,]  and  not  depart  the  court  without  leave,  then  this 
recognizance  shall  be  void;  otherwise  it  shall  remain  in  full  force 
and  virtue  in  law. 

Taken  and  acknowledged  before  me,  on  the  day  and  year  above 
written. 

G H ,  J.  p. 

FORM  OF  MITTIMUS  FOR  COMMITMENT  OF  THE  PARTY  ACCUSED.* 

The  State  of  Ohio, County,  ss. 

-    To  the  keeper  of  the  jail  of  the  County  aforesaid,  greeting: 

Whereas,  C D ,  late  of  said  county,  has  been  arrested, 

on  the  oath  of  A. B ,  for  [here  describe  the  qlfence  in  the  irords 

of  the  statute  creating  it.  The  description  must  shoio  suhstantially  a 
criminal  matter  for  which  a  justice  of  the  peaceltas  jurisdiction  to  com- 
mit.    Slat.  436:]  and  has  been  examined  by  me,  G H ,  one 

of  the  justices  of  the  peace  in  and  for  said  county,  on  such  charge, 
and  required  to  give  bail  in  the  sum  of dollars  for  his  appear- 
ance before  the  court  of  common  pleas  of  said  county,  on  the  first 
day  of  the  next  term  thereof,  [or  iorthwith,  as  the  factivas;  but  this 
requisition  of  bail  is  not  to  he  made  or  staled  loJien  the  accused  is  found 
guilty  of  murder  in  tlie first  degree-\  which  re(iuisition  he  has  failed 
to  comply  with. 

Therefore,  in  the  name  of  the  State  of  Ohio,  I  command  you  to 

receive  the  said  C D into  your  custody,  in  the  jail  of  the 

county  aforesaid,  there  to  remain  until  he  [or  she]  be  discharged  by 
due  course  of  law. 

Given  luider  my  hand  and  seal,  this day  of ,  in  the 

year . 

G H ,  J.  p.  (Seal.) 

(a)  Stat.  545. 


[1]  The  defendant  cannot  of  course  have  his  witnesses  recognized,  for  it  may  be 
that  the  grand  jury  will  find  no  bill  against  him. 


§8,9.]  PROCEEDINGS  IN  CRIMINAL  CAUSES.  489 

Sec.  IX. OF  THE  DOCKET  ENTRIES  AND  TRANSCRIPTS,  WITH  THE  FORMS 

THEREOF. 

It  is  made  by  law  the  duty  of  every  justice  of  the  peace  to  keep 
a  docket  of  criminal  causes,  as  in  civil  cases;  and  if  a  person  is  re- 
cognized or  committed  to  jail  for  a  crime,  the  justice  must  transmit 
or  deliver  to  the  clerk  of  the  court,  or  prosecuting  attorney,  a  tran- 
script of  his  proceedings,  before  the  commencement  of  the  court 
thereafter  to  be  holden;  or  forthwith,  if  the  proceedings  are  had 
during  term  time.*  The  recognizance  of  the  defendant,  if  there  be 
one,  and  that  of  the  witnesses,  should  also  be  transmitted  or  deliv- 
ered to  the  clerk  or  prosecuting  attorney,  at  the  same  time  as  has 
been  before  stated.''  Tiie  transcript  may  be  certified  in  the  form 
heretofore  given.(l)  It  must  contain  an  accurate  bill  of  all  the 
costs  that  have  accrued,  and  the  items  of  charge  composing  the 
same.* 

The  State  of  Ohio,  i 
vs.  > 

C D .  ) 

July  5,  1 840. — This  day,  came  A B ,  and  made  oath,  [or 

affirmation,]  that  [liere  stale  the  substance  of  the  charge^  as  set  forth 
in  the  affidavit  of  the  p}-osecuto}-.']     Took  his  affidavit  thereof:  thei'e- 

upon  issued  a  warrant  against  C D ,  and  delivered  the  same 

to  I J ,  constable. 

July  6,  1840. — Warrant  returned  with  the  body  of  defendant. 

[-Here  copy  the  return  of  the  constable!]     Being  satisfied  that  A 

G ,  a  material  witness  for  the  State,  is  absent,  and  his  testimony 

cannot  be  procured  until  to-morrow,  at  2  o'clock,  p.  m.  ;  the  defend- 
ant entered  into  a  recognizance  with  E F ,  and  M 

S ,  his  sureties,  for  his  appearance  at  2  o'clock,  p.  m.,  on  to- 
morrow, to  which  time  this  cause  was  adjourned. 

If  the  defendant  forfeits  his  recognizance^  malic  an  entry  thereof  as 
follows : 

'■'■July  7,  1840. —  The  defendant  failed  to  appear  at  any  time  on 
the  said  day,  as  he  was  bound  to  do,  according  to  the  conditions  of 
his  said  recognizance,  and  the  same  became  and  was  forfeited." 

If  the  defendant  be  recognized^  and  during  the  progress  of  the  trial 
escape^  enter  thefoifeiture  of  the  recognizance  in  these  irords: 

'■'■July  7,  1 840,  2  o"" clocks  P.  M. — The  defendant  appeared,  and  this 
cause  came  on  to  trial,  and  then  while  the  said  defendant  was  on 
trial,  he,  without  leave,  departed,  and  i'ailed  to  answer  to  said  charge 

(a)  Stat.  539,  $21  and  20. 


(1)  See  page  179. 

62 


490  PROCEEDINGS  IN  CRIMINAL  CAUSES.  [P//.  3,  Ch.  1,] 

accorcUnf;  to  the  condition  of  his  said  recognizance,  and  the  same 
became  and  was  Ibrlcited/' 

/f,  however^  the  dcfemhrnt  appears  and  docs  not  depart^  proceed  as 
follows: 

*    ^^The  defendant  appeared,  trial  had,  A 15 ,  &:c.,  witnesses, 

sworn  and  examined,  and  thereui)on  the  defendant  was  ordered  by 
me  to  enter  into  a  recognizance  in  the  sum  of —  dollars  for  his  ap- 
pearance at  court,  fcc,  which  was  done  accordingly.     E T , 

and  M T ,  his  sureties.     [Or  soy,  if  the  fact  so  he,  which 

he  neglected  to  do;  and  thereupon  1  issued  a  mittimus  for  his  com- 
mitment, and  delivered  the  same  to  I J ,  consttible.]     Re- 

coo-nized  the  following  witnesses  in  behalf  of  the  State:  A B , 

E^ —  F ,  &c. 

Juh/  7,  1 840. —  Mittimus  returned,  [here  copy  the  return  of  the  con- 
stable.^ 

Items  of  fees,  } 


CHAPTER  II. 
CRIMINAL  CAUSES. 

SECTION  I.       QUI  TAM  ACTIONS,  AND  ACTIONS  FOR  PENALTIES. 
ir.      ASSAULT  AND  BATTERY. 

(A)  What  is  an  assault. 

(B)  W/iat  is  a  battery. 

(C)  Of  the  defence  and piinishment. 

tll.    FIGHTING,   CHALLENGING  TO  FIGHT,  AND  AFFRAYS. 
IV.    PROCEEDINGS   REQUIRING  THE  ACCUSED  TO  ENTER  INTO  RECOG- 
NIZANCE TO  KEEP  THE  PEACE. 


Sec.  I, QUI  TAM  ACTIONS,  AND  ACTIONS  FOR  PENALTIES. 

There  are  various  statutes  forbidding  certain  acts  injurious  to  the 
public,  or  to  particular  individuals,  from  being  done,  under  certain 
money  penalties,  and  authorizing  private  individuals,  or  corpora- 
tions, to  sue  for  the  penalties  in  an  action  of  debt.  The  same  sta- 
tute that  creates  the  penalty  in  general,  points  out  the  person  who 
shall  be  plaintifi'.  Nothing  need  be  said  of  such  cases,  as  the  jus- 
tice must  simply  follow  the  directions  of  the  statute.  Where  a  sta- 
tute creates  a  penalty,  and  authorizes  a  recovery  before  a  justice 
by  an  action  of  debt,  but  is  silent  as  to  the  person  or  corporation  in 
whose  name  the  penalty  shall  be  prosecuted,  the  action  should,  in 
general,  be  brought  in  the  name  of  ''•The  State  of  Ohio."  In  such 
case,  however,  if  that  which  is  prohibited  and  out  of  which  the  for- 
feiture arises,  be  prejudicial  to  any  particular  person,  to  whom  the 
penalty  is  to  be  paid,  that  person  may  sue  and  recover  in  his  own 
name.*  But  if  part  be  given  to  him,  or  to  any  other  informer  who 
shall  sue,  and  a  part  to  some  other  person,  or  corporation,  then  the 
suit  should  be  brought  by  the  party  aggrieved,  or  by  the  informer; 
who,  with  the  person  or  corporation  entitled  ,^to  a  portion  of  the 
penalty,  should  be  named  in  the  process,  and  on  the  docket — Thus: 

B ,  [///e  name  of  the  parly  aggrieved.^  or  the  informer^ 


wlio  sues  as  well  for  \liere  name  the  corporation  or  person  entitled  to 
a  portion  of  the  jjenalty^  as  for  himself. 

(b)  13  Petered.  Ab.  278,  note;  Holt'e  Rep.  6l0i  5  Mod.  913. 


492  CRIMINAL  CAUSES.  [Prt.  3,  Ch.  2, 

Where  the  penalty  is  to  be  paid  over,  when  recovered,  to  a  par- 
ticular fund,  or  to  a  particular  otliccr  or  corporation,  and  the  statute 
is  silent  as  to  who  shall  sue,  perhaj)s  tlio  safest  course  will  be  to  bring 
the  suit  in  the  name  of  The  State  of  Ohio,  for  the  use  of  the  fund, 
corporation,  or  person,  named  in  the  statute.* 

The  State  of  Ohio  is  always  the  i)laintiir  in  proceedings  of  a  strict- 
ly criminal  nature;^  and  the  above  remarks  are  applicable  only  to 
certain  statutes  which  create  a  penalty,  or  forfeiture,  in  the  nature 
of  a  debt.  Thus:  if  a  person  drive  faster  than  a  walk  over  certain 
bridges,  he  is  liable  to  a  penalty  of  not  less  than  one,  nor  more  than 
five  dollars,  which  may  be  recovered  by  the  owner  of  the  bridge.*^ 
It  is  to  offences  of  this  and  the  like  nature,  that  the  above  observa- 
tions arc  particularly  applicable. 

These  actions  for  penalties,  when  not  brought  in  the  name  of  the 
State,  and  where  the  justice  has  authority  to  render  judgment, 
should,  perhaps,  since  the  recent  statute  in  relation  to  imprison- 
ment for  debt,  be  founded  upon  an  affidavit,  if  a  capias  or  warrant 
is  issued. 

The  rules  in  relation  to  costs,(l)  stay  of  execution,(2)  and  an  ap- 
peal,(3)  have  already  been  stated. 


Sec.  II. ASSAULT  and  BATTERy. 

(A)   TV  hat  is  an  assault. 

An  assault  is  an  attempt  to  commit  a  forcible  crime  against  the 
person  of  another;  such  as  an  attempt  to  commit  a  battery,  murder, 
robbery,  rape,  &c.  Striking  at  another  with  a  cane,  stick,  or  fist, 
although  the  party  striking  miss  his  aim;  drawing  a  sword,  or  throw- 
ing a  s-tone,  or  bottle,  fcc,  with  intent  to  wound  or  strike;  present- 
ing a  loaded  gun  at  a  man  who  is  within  the  distance  to  w-hich  the 
gun  will  carry;  pointing  a  pitchfork  at  him,  when  within  reach  of 
it;  or  any  other  act  indicating  an  intention  to  use  violence  against 
the  person  of  another,  is  an  assault.  Mere  words,  however,  never 
can  amount  to  an  assault.  So,  if  a  man  strike  at  another,  but  at 
such  a  distance  that  he  cannot  by  possibility  touch  him,  it  is  no  as- 
sault. The  intention,  as  well  as  the  act,  must  constitute  an  assault; 
for,  if  a  person  show,  at  the  time  he  does  the  act,  an  intention  not 
to  strike,  the  act  cannot  be  deemed  an  assault.  For  instance,  if  a 
man  in  a  threatening  posture  should  half  draw  a  sword  from  its 
scabbard,  and  say,  '■'If  the  grand  jury  were  not  in  session,  I  would 
run  you  through  the  body;"  it  would  be  no  assault,  as  the  words 
explain  that  the  party  did  not  intend  any  immediate  injury. 

(a)  5  East,  315;  1  Chitty's  Plead.  128,  (Gtli  Am.         (1);  Const,  of  Ohio,  Art.  3,  $12. 
Edition.)  (c)  Slat.  1G4.  $2. 

(1)  See  pages  112,  113.     (2)  See  page  132.      (3)  See  page  123. 


§2,(A),(B),(C).]  CRIMINAL  CAUSES,  493 


(B)  What  is  a  battery. 

It  means  not  merely  to  strike  forcibly  with  the  hand  or  a  stick,  or 
the  like,  but  includes  every  touching  (however  trilling)  of  another's 
person,  in  an  angry,  revengeful,  rude,  or  insolent  manner;  as,  for 
instance,  pushing  him  in  anger;  holding  him  by  the  arm;  spitting  in 
his  face;  jostling  him  out  of  the  way;  pushing  another  man  against 
him;  striking  a  horse  upon  which  he  is  riding,  whereby  he  is  thrown; 
or  the  like. 

(C)  Of  the  defence  and  punishment. 

It  is  a  good  defence,  to  prove  that  the  battery  happened  by  acci- 
dent, or  misadventure.  If  a  horse  run  away  with  his  rider,  and  run 
against  a  man,  it  is  no  battery. 

It  is  a  good  defence,  to  prove  that  the  alledged  battery  was  mere- 
ly the  correcting  of  a  child  by  his  parent,  or  an  apprentice  or  scho- 
lar by  his  master:  provided  the  correction  be  not  excessive  and  im- 
moderate in  the  manner,  instrument,  and  quantity,  under  all  the 
circumstances. 

It  is  a  good  defence,  in  justification  even  of  a  wounding  or  dis- 
abling an  assailant,  to  prove  that  he  assaulted  or  beat  the  defendant 
first,  if  the  defendant  also  prove  that  he  committed  the  alledged  bat- 
tery in  his  own  defence. 

If  the  defendant  prove  an  assault,  merely,  upon  him  —  as,  for  in- 
stance, that  the  prosecutor  lifted  up  his  stick  in  order  to  strike  him, 
it  it  sufficient  to  justify  the  defendant's  striking  the  prosecutor;  for 
he  need  not  in  such  a  case,  stay  until  the  other  has  actually  struck 
him.  But  in  general,  it  v>ill  be  no  justification  for  the  defendant  to 
show  a  previous  assault,  or  assault  and  battery  upon  liim,  unless  he 
also  shows  that  he  only  made  use  of  sufficient  force  to  repel  the  at- 
tack upon  him:  for,  if  it  were  excessive  —  if  it  were  greater  than 
was  necessary  for  mere  defence  —  the  prior  assault  or  battery  upon 
the  defendant,  will  be  no  justification  to  him,  but  both  parties  will 
then  be  guilty,  and  should  be  punished.  A  husband  may  justify  a 
batteiy  in  defence  of  his  wife;  a  wife  in  defence  of  her  husband;  a 
parent  in  defence  of  his  child;  a  child  in  defence  of  his  parent;  an 
apj)i"entice  in  defence  of  his  master;  and  the  master  in  defence  of 
his  apprentice:  but,  in  all  these  cases,  the  battery  must  bo  such  only 
as  was  necessary  to  tlic  defence  of  his  relation;  for  in  these  cases 
also,  if  it  were  excessive,  and  greater  than  was  necessary  for  mere 
defence,  the  prior  assault  will  be  no  justification,  but  both  parties 
will  be  guilty  each  of  an  assault  and  battery  upon  the  other.  It 
will  also  be  a  sufficient  answer  to  this  defence,  to  prove  that  the  first 
assault  was  justifiable. 

The  defendant  may  justify  a  battery,  by  proving  that  he  commit- 
ted it  in  defence  of  his  possession.  If  a  man  enters  your  house,  or 
go  on  your  farm,  you  must  first  rc(|ucst  in'm  to  depart,  before  you 
can  justify  laying  hands  on  him  for  the  i)urpose  of  removing  him; 


494  CRIMINAL  CAUSES.  [Pw.  3,  Ch.  % 

and  if  you  should  immediately  thereafter  rush  upon  him,  before 
giving  him  time  to  comply  with  your  request,  you  would  be  guilty 
of  an  assault  and  battery;  and  even  if  lie  refuse  to  depart,  you  have 
no  right  to  lise  more  force" than  is  necessary  to  remove  him,  and 
at  tiie  same  time  protect  your  person  from  injury.  If  the  trespas- 
ser then  use  force,  you  n:tay  op})ose  force  to  force;  and  in  such  a 
case,  if  you  are  assaulted  and  beaten,  you  may  justify  a  wounding 
and  disabling  of  the  trespasser,  in  self-defence^  as  is  above  mention- 
ed. In  answer,  however,  to  a  justification  jn  defence  of  p^s'ession, 
the  prosecutor  may  prove,  in  behalf  of  the  Sta^j^that  the  battery 
was  excessive,  or  that  more  force,  or  such  a  weapon  was  used,  as, 
under  the  circumstances,  was  not  required,  to  repel  the  invasion  of 
the  wrongdoer. 

A  landlord  has  no  right  to  forcibly  turn  out  his  tenant,  after  the 
expiration  of  tlic  lcasc.(l) 

If  the  warrant  was  issued  against  the  accused  on  tlic  complaint 
of  the  party  injured, (2)  and  the  defendant  pleads  guilty,  the  justice 
may  render  judgment  and  issue  execution  for  a  fine,  not  exceeding 
one  hundred,  nor  less  than  five  dollars.''  ]f,  however,  the  assault 
and  battery  is  of  an  aggravated  nature,  such  as  requires  imprison- 
ment as  a  proper  punishment,  the  justice  should,  notwithstanding 
the  plea  of  guilty,  require  the  defendant  to  enter  into  a  recogniz- 
ance, as  in  other  criminal  cases;(3)  and  in  default  thereof,  commit 
the  defendant  to  the  jail  of  the  county.  If  the  defendant  pleads  not 
guilty,  and  persists  in  that  plea  after  trial,  the  justice  cannot  fine 
him,  but  must  either  discharge,  commit,  or  recognize  him.''  The 
defendant  may,  however,  at  any  time  before  he  enters  into  a  recog- 
nizance, or  the  writ  for  his  commitment  to  jail  is  handed  to  the  con- 
stable, withdraw  his  plea  of  not  guilty,  and  plead  guilty.  If  the 
prosecution  is  not  commenced  within  three  months  after  the  offence 
was  committed,  the  justice  must  discharge  the  defendant.*^ 


Sec.  III. FIGHTING,  CHALLENGING  TO  FIGHT,   AND  AFFRATS, 

A  justice  may  fine  any  person,  (not  exceeding  ten,  nor  less  than 
one  dollar,)  who  challenges  another  to  fight  at  fisticufts,  or  with 
cudgels;  or  who  provokes,  or  attempts  to  provoke  another,  to  com- 
mit a  breach  of  the  peace."*  Judgment  is  rendered  and  execution 
issued,  as  in  civil  cases.®  The  prosecution  must  be  commenced 
within  ten  days  after  the  offence  is  committed.^ 

»  (a)  Stat.  537,  §3.  *  (d)  Stat.  538,  §6. 

(b)  Id.  538.  $5.  (e)  Id.  ih.  $7. 

,  (c)  Id.  ib.  $8.  (g)  Id.  ib.  $8. 


(1)  See  page  466.  (2)  See  page  495,  note  [1]. 

(3)  For  the  form  of  the  recognizance,  see  page  487. 


■4» 


§3,4,]  CRIMINAL  CAUSES.  495 

If  a  person  is  arrested  on  a  warrat  for  fighting,  or  boxing  at  fisti- 
cufl's,  issued  on  the  complaint  of  the  party  injured,  and  pleads  guilty 
before  the  justice,  the  latter  may  either  recognize  the  defendant,* 
or  render  judgment  and  issue  execution  for  a  sum  not  less  than  five, 
nor  more  than  one  hundred  dollars,  with  costs, ""(l) 

The  prosecution  must  be  commenced  within  three  months;  if 
commenced  after  that  tinje  the  defendant  should  be  discharged,*^  If 
the  defendant  pleads  not  guilty,  and  persists  in  that  plea  after  trial, 
the  justice  must  either  discharge,  commit,  or  recognize  him,  as  in 
other  criminal  cases. '^  If  the  justice  issuing  the  warrant  in  these 
cases,  or  for  an  assault  and  battery,  be  absent  or  incapable  of  act- 
ing, the  accused  may  be  taken  before  some  other  justice  of  the 
county,  the  party  complaining  being  notified  of  the  time  and  place 
of  trial.^ 


Sec.  IV. PROCEEWNGS  REQUIRING  THE  ACCUSED  TO  ENTER  INTO  A  RE- 
COGNIZANCE TO  KEEP  THE  PEACE,  &C, 


Any  person  may  make  complaint,  on  oath  or  aflirmation,  before 
a  justice  of  the  peace,  stating  amongst  other  things,  that  the  person 
making  the  complaint  has  just  cause  to  fear,  and  does  fear,  that  an- 
other will  beat,  wound,  or  kill  him  or  her,  or  his  or  her  ward,  child, 
or  children,  or  will  commit  some  other  act  of  personal  violence  upon 
him,  her,  or  them;  or  will  burn  his  or  her  dwelling  house,  or  out- 
house; or  will  maliciously  injure,  or  destroy,  his  or  her  property, 
otlier  than  the  buildings  above  mentioned.^(2) 

(a)  Stat.  537,  $4  (<J)  Stat.  538,  $5. 

(I))  Id.  ib.  $3.  (e)  Id.  537,  §2. 

(c)  Id.  538,  $8.  (g;  Id.  538,  §9. 


(1)  It  is  not  uncommon  for  a  person  who  has  been  guilty  of  fighting-,  or  of  an 
assault  and  battery,  to  voluntarily  go  before  a  justice  and  make  complaint  against 
himself.  Where  tliis  is  done,  the  justice  should  recognize  the  defendant  to  ap- 
pear before  the  coiu't  of  common  pleas.  It  is  only  where  the  party  injured  makes 
complaint,  that  a  justice  is  authorized,  on  a  plea  of  guilty,  to  assess  a  fine  and  ren- 
der judgment  therefor. 

(2)  The  statute  does  not  expressly  require  the  complaint  to  be  in  writing,  but 
it  is  proper,  and  perhaps  the  safest  course,  to  draw  up  an  affidavit  in  the  form  fol- 
lowing : 

The  State  of  Ohio,  County,  ss. 

iJefore  me,    Ci H ,  one  one  of  the  justices  of  the  peace  for  said  county, 

personally  came  A 15 ,  who  being  duly  sworn  according  to  law,  deposetli 

and  saith,    that    lie   hath    just  cause  to  fear,  and  does  feai-,  that  C D will 

[here  state  the  threatened  violence,  describing  the  injur ij  in  the  ii.ord.s  cj' the  statute.'] 

[  Signet/,  ]  A 15 

Sworn  to  and  subscribed,  before  nie,  this day  of ,  in  the  year . 

G II .    J.  p. 


496  CRIMINAL  CAUSES,  [Pr^.  3,  Ch.  2, 

And  thereupon,  if  tlie  justice,  from  tlie  examination  of  the  com- 
plainant uuiler  oath,  and  the  circumstances  detailed  by  him,  believes 
that  the  complainant  has  even  probable  grour.Js  to  ap])iehend  that 
the  injury  will  be  committed,  he  must  issue  a  warrant  in  the  name 
of  the  State,  directed  to  any  constable  of  the  county,  commanding 
him  forthwith  to  arrest  the  accused,  and  him  or  her  to  take  before 
such  justice,  or  any  other  justice  of  the  peace  of  the  county,  to  an- 
swer such  complain t.''(l) 

Upon  the  return  of  the  warrant,(2)  witli  the  person  accused  in 
custody,  the  justice  to  whom  it  is  returned,  must  examine  into  the 
truth  of  the  complaint,"^ 

In  determining  upon  the  merits  of  the  case,  the  justice  should  dis- 
charge the  defendant,  notwithstanding  the  honest  fears  entertained 
by  the  complainant,  if,  from  the  circumstances,  he  believes  that  no 
well  grouncled  apprehension  ought  to  exist,  that  the  accused  will 
commit  the  injury  threatened. 

If  upon  the  examination  the  justice  shall  be  of  opinion  that 
there  is  just  cause  for  the  fears  and  complaint,  he  must  order  the 
defendant  to  enter  into  a  recognizance  with  good  and  suflicient 
security,  being  a  freeholder  or  householder  in  the  county,  in  any 
sum  not  exceeding  five  hundred,  nor  less  than  fifty  dollars,  condi- 
tioned for  his  or  her  appearance  before  the  court  of  common  pleas 
of  the  proper  county,  on  the  first  day  of  the  next  term  thereof; 
and  in  the  mean  time,  that  he,  or  she,  shall  keep  the  peace  and 
be  of  good  behaviour  generally,  and  especially  towards  the  person 
complaining.''(3)     In  default  of  such  recognizance  and  surety,  the 

(a)  Stat.  5:38,  $10.  (c)  Stat.  538,  $12. 

(b)  Id.ib.  §11. 


(1)  Form  of  the  AVarrant.      (5"^^.  544.) 

The  State  of  Ohio, county,  ss. 

To  any  constable  of  said  county,  greeting. 

"Whereas,  complaint  has  been  made  before  me,  one  of  the  justices  of  the  peace 

in  and  for  said  county,  by  one  A B ,  of county,  on  oath,  [or  say,  on 

affirmation,  us  the  fact  may  he,]  that  he  [or  say,  she,]  hatl)  just  cause  to   fear,  and 

does  fear,  tiiat  one  C D ,  late  of  tlie  county  of ,  will    [here  state  the 

threatened  injury  or  violence,  according  to  the  fact,  as  sworn  or  affirmed  to.]  * 

These  are  therefore  to  command  you,  in  the  name  of  the  State  of  Ohio,  to  ap- 
prehend the  said  C D ,  and  bring  him  [or  say,  her,]  forthwith  before  me, 

or  some  other  justice  of  the  peace  within  and  for  the  said  countj'  of ,  to  show 

cause  why  he  [or  say,  she,]  should  not  find  surety  to  keep  the  peace,  and  be  of 

good  behaviour  towards  the  citizens  of  the  State  generally,  and  the  said  A 

B especially,  and  for  his  [or  her]  appearance  before  the  court  of  common 

pleas,  next  to  be  holden  in  and  for  the  county  of . 

Given  under  my  hand  and  seal,  this day  of ,  in  the  year  18 — . 

G H J.  p.  [Seall 

(2)  As  to  the  form  of  the  return,  see  page  53. 

(3)  Form  of  Recognizance  to  keep  the  peace.     (Stat.  545. ) 

Follow  the  form  of  the  recognizance  on  page  487,  from  the  beginning  to  the  t;  and 
after  stating  the  offence  us  there  required,  then  proceed  as  follows: 

And  abide  the  order  of  the  court  thereon;  and  in  the  mean  time  to  keep  the 


§4.]  "  CRIMINAL  CAUSES.  497 

justice  must  commit  the  person  complained  of  to  the  jail  of  the 
county,  there  to  remain  until  discharged  by  due  course  of  law.*(l) 
If  the  justice  shall  be  of  the  opinion  that  the  accusation  is  not 
established,  he  must  discharge  the  accused,  and  render  judgment  in 
the  name  of  the  State,  against  the  party  complaining,  for  the  costs 
of  prosecution  and  may  collect  the  same  by  execution  as  in  civil 
cases."  The  recognizance,  with  a  transcript  of  the  proceedings, 
and  the  items  of  costs,  must  be  delivered  or  transmitted  to  the  clerk 
of  the  court  of  common  pleas,  or  to  the  prosecuting  attorney,  as  in 
other  criminal  cases.(2) 

(a)  Stat.  539,  $13.  (b)  Stat.  539,  $14. 


peace,  and  be  of  g-ood  behaviour  towards  the  citizens  of  the  State  generally, 

and  especially  towards  the  said  A B ;  then  this  recognizance  shall  he  void; 

otherwise  to  be  and  remain  in  full  force  and  virtue  in  law. 

Taken  and  acknowledged  before  me,  on  the  day  and  year  above  written. 

G H ,  J.  p. 

If  the  recognizance  is  taken  in  term  time  of  the  Court  of  Common  Pleas,  it 
must  require  the  accused  to  appear  forthwith  before  the  court. 

(1)  Form  of  Mittimus  for  the  commitment  of  the  defendant. 

The  State  of  Ohio,  «•  County,  ss. 

To  the  keeper  of  tlie  jail  of  the  county  aforesaid,  greeting: 

Follow  the  form  of  the  warrant  on  page  496,  n.  (1),  from  the  beginning  to  the  * 
and  from  that  point  proceed  as  folloivs: 

And  wliereas,  I  examined  into  the  truth  of  said  complaint,  and  was  of  opinion 

that  there  was  just  cause  therefor,  and  thereupon  ordered  the  said  C t) 

to  enter  into  recognizance  with  security,  as  the  law  directs,  which  he  hath  refused 
to  do:  Therefore,  the  State  of  Ohio  hereby  commands  you  to  receive  the  said 
C D into  your  custody,  in  the  jail  of  the  county  aforesaid;  there  to  re- 
main until  discharged  b\'  due  course  of  law. 

Given  under  my  hand  and  seal,  this dav  of ,  in  the  year . 

G H ,  J.  p.  [Seal.] 

It  is  proper  here  to  state,  that  in  case  of  a  riot,  it  is  the  duty  of  all  judges,  jus- 
tices of  the  peace,  sheriffs,  constables,  and  all  ministerial  officers,  immediately 
upon  actual  view,  or  as  soon  as  may  be  on  information,  to  make  proclamation  in 
the  hearing  of  tlie  offenders,  commanding  them  in  the  name  of  the  State  of  Ohio 
to  disperse  and  depart  to  tlieir  several  homes  or  lawful  employments;  and  if  upon 
such  proclamation  they  do  not  disperse  and  depart,  it  is  the  duty  of  the  officers  to 
call  upon  all  persons  near,  and  if  necessarj',  throughout  the  county,  to  aid  in  dis- 
persing and  taking  into  custody,  all  persons  assembled.  Slat.  241,  §.'53.  Tiiis 
proclamation  must  not  be  a  mere  mockery,  but  it  is  the  duty  of  the  officers  and 
those  who  aid  him  to  kill  the  rioters,  if  they  cannot  after  the  proclamation  be  other- 
wise dispersed  or  arrested.     Stat.  242,  §.55;    1  Hale  495;  1  J'Jast.  P.  C.  304. 

Other  States  have  been  recently  disgraced  by  riots,  but  doubly,  foully  disgraced 
by  the  conduct  of  those  who  might  have  suppressed  them  by  jirompt  military  ac- 
tion. If  the  personal  safet}'  and  private  pro|)erty  of  a  citizen  is  to  be  held  at  the 
mercy  of  a  mob,  under  Lynch  law,  where  are  the  rights  of  an  American  citizen, 
and  what  are  the  constitution  and  the  laws  but  things  that  wehe? 

(2)  See  page  489.  As  to  the  proceedings  in  these  cases  in  the  Court  of  Com- 
mon I'leas,  see  Stat.  539,  Sections  15,  16,  17,  18. 


G3 


PART  FOURTH. 


/" 


« 


PART  FOURTH 


FORMS  OF  CONVEYANCES,  AGREEMENTS,  &c. 


The  following  forms  will  not  be  very  satisfactory  to  those  who 
liave  been  accustomed  to  the  tautology  and  verbia.ge  adopted  by 
English  scriveners  in  conveyancing,  &c.(l) 

It  will  be  proper  to  here  give  a  summary  of  the  statute  law  rela- 
ting, to  conveyances  aiTecting  lands. 

The  act  to  provide  for  the  proof,  acknowledgment,  and  recording 
of  deeds,  and  other  instruments  of  writing,  provides,*  that  when 
any  man  above  the  age  of  twenty-one  years,  or  female  above  the 
a;ge  of  eighteen  years,''  shall  execute,  within  this  State,  any  deed, 
mortgage,  or  other  instrument  of  writing,  by  which  any  land,  tene- 
ment, or  hereditament,  shall  be  conveyed,  or  otherwise  affected  or 
incumbered  in  law,  such  deed,  mortgage,  or  other  instrument  of 
writing,  must  be  signed  and  sealed  by  the  grantor  or  grantors, 
maker  or  makers,  and  such  signing  and  sealing  must  be  acknow- 
ledged by  such  grantor  or  maker  in  the  presence  of  two  witnesses, 
who  must  attest  such  signing  and  sealing,  and  subscribe  then"  names 
to  such  attestation:  and  such  signing  and  sealing  must  also  be  ac- 
knowledged by  such  grantor  or  grantors,  maker  or  makers,  before 
a  judge  of  the  supreme  court  or  of  the  court  of  common  pleas,  a 
justice  of  the  peace,  notary  public,  mayor,  or  other  presiding  officer 
of  an  incorporated  town  or  city,  who  must  certify  such  acknow- 
ledgment on  the  same  sheet  on  which  such  deed,  mortgage,  or  other 
instrument  of  writing  may  be  printed  or  written,  and  must  sub- 
scribe his  name  to  such  certificate.'^ 

When  a  husband  and  wife,  she  being  eighteen  years  of  age  or 
upwards,  shall  execute,  within  this  State,  any  deed,  mortgage,  or 
other  instrument  of  writing,  for  the  conveyance  or  incumbrance  of 

(a)  Stat.  265.  (1>)  Id.  438.  (c)  Id.  265. 269,  $15. 


(1)  The  following-  is  a  g'ood  conveyance,  when  duly  executed  and  acknow- 
ledged  : 

"  I,  A I? ,  for  one  dollui-  paid  by  C I) ,  do  grant  and  convey- 
to  C U and  his  iieirs,  ia-lot  iNo.  343  in  Columbus."     4  A'crit's  Com.  26 J. 


502  FORMS  OF  CONVEYANCES,  &C.  '    [Frt.  4. 

the  estate  of  the  wife,  or  her  right  of  dower  in  any  land,  tenement, 
or  hereditament,  situate  within  this  State;  such  deed,  mortgage,  or 
otlicr  instrument  of  writing,  must  be  signed  and  sealed  by  the  hus- 
b;ind  and  wife;  and  such  signing  and  sealing  must  be  attested  and 
acknowledged  in  the  manner  prescribed  by  law:  and  in  addition 
thereto,  the  oliicer  bel'ore  whom  such  acknowledgment  shall  be 
made,  must  examine  the  wife  separate  and  apart  from  her  hus- 
band, and  must  read,  or  otherwise  make  known  to  her,  the  con- 
tents of  such  deed,  mortgage,  or  other  instrument  of  writing:  and 
if,  upon  such  separate  examination,  she  shall  declare  that  she  did 
voluntarily  sign,  seal,  and  acknowledge  the  same,  and  that  she  is 
still  satisfied  therewith,  such  officer  must  certify  such  examination 
and  declaration  of  the  wife,  together  with  the  acknowledgment  as 
aforesaid,  on  such  deed,  mortgage,  or  other  instrument  of  writing, 
and  subscribe  his  name  thereto. 

All  powers  of  attorney  authorizing  the  sale,  conveyance,  or  mort- 
gaging of  any  real  estate,  must  be  signed,  sealed,  attested,  acknow- 
ledged, and  certified,  in  the  manner  before  pointed  out  in  the  case 
of  deeds,  mortgages,  &c.,  and  when  the  right  of  the  wife  in  lands 
is  to  be  conveyed  or  relinquished,  she  must  join  her  husband  in  the 
execution  of  the  power  of  attorney  for  that  purpose,  which  power 
must  be  executed,  attested,  and  acknowledged,  agreeably  to  the 
above  requisitions, 

A  conveyance  made  under  a  power  executed  as  aforesaid,  must 
contain  the  name  of  the  wife,  and  must  divest  her  of  all  claim  to 
the  estnte;  provided,  that  the  wife  may,  at  any  time  before  a  sale 
and  conveyance,  revoke  such  power,  so  far  as  it  relates  to  her  in- 
terest; but  such  revocation  does  not  take  effect  until  recorded  in 
the  county  where  the  lands  are  situate. 

All  deeds,  mortgages,  powers  of  attorney,  and  other  instruments 
of  writing,  for  the  conveyance  or  incumbrance  of  any  lands,  tene- 
ments, or  hereditaments,  situate  within  this  State,  executed  and 
acknowledged,  or  proved,  in  any  other  State,  Territory,  or  coun- 
try, in  conformity  with  the  laws  of  such  State,  Territory,  or  coun- 
try, or  in  conformity  with  the  laws  of  this  State,  shall  be  as  valid 
as  if  executed  within  this  State,  in  conformity  with  the  foregoing 
provisions. 

All  powers  of  attorney  authorizing  the  execution  of  any  deed, 
mortgage,  or  other  instrument  of  writing,  for  the  sale,  convey- 
ance, or  incumbrance  of  any  lands,  tenements,  or  hereditaments, 
in  this  State,  must  be  recorded  in  the  office  of  the  recorder  of  the 
county  in  which  such  lands,  tenements,  or  hereditaments,  are  situ- 
ated, previous  to  such  sale,  or  the  execution  of  such  deed,  mort- 
gage, or  other  instrument  of  wa'iting,  by  virtue  of  such  power  of 
attorney. 

AH  mortgages  executed  as  above  mentioned,  must  be  recorded  in 
the  office  of  the  recorder  of  the  county  in  which  such  mortgaged 
premises  are  situated,  and  will  take  etfect  from  the  time  when  the 
same  are  recorded;  and  if  two  or  more  mortgages  are  presented  for 
record  on  the  same  day,  they  take  ellect  from  the  order  of  presenta- 


Prt.  4.]  FORMS  OF  CONVEYAXCES,  fcc.  503 

tion  for  record;  the  first  presented,  must  be  the  first  recorded;  and 
the  first  recorded,  Mill  have  preference. 

All  other  deeds  and  instruments  of  writing  for  the  conveyance  or 
incun^rance  of  any  lands,  tenements,  or  hereditaments,  executed 
agreeal)ly  to  the  foregoing  provisions,  must  be  so  recorded  within  six 
months  from  the  date  thereof;  and  if  such  deed,  or  other  instrument 
of  writing,  be  not  so  recorded  within  the  time  herein  specified,  the 
same  will  be  deemed  fraudulent,  so  far  as  it  relates  to  any  subse- 
quent bona  fide  purchaser,  having,  at  the  time  of  making  such  pur- 
chase, no  knowledge  of  the  existence  of  such  former  deed,  or  other 
instrument  of  writing:  provided,  that  such  deed,  or  other  instrument 
of  writing,  may  be  recorded  after  the  expiration  of  the  time  herein 
set  forth,  and  from  the  date  of  such  record,  will  be  notice  to  any 
subsequent  purchaser. 

Nothing  in  the  laws  above  referred  to,  can  be  construed  to  affect 
the  validity  of  any  lease  of  school  or  ministerial  lands,  for  any  term 
not  exceeding  ten  years;  or  of  any  other  lands,  for  any  term  not 
exceeding  three  years;  or  to  require  such  lease  to  be  attested,  ac- 
knowledged, or  recorded. 

All  deeds,  mortgages,  and  other  instruments  of  writing,  hereto- 
fore executed,  in  conformity  wath  the  provisions  of  the  laws  in  force 
at  the  time  of  their  execution,  will  be  as  valid  as  if  executed  accord- 
ing to  the  provision  of  the  laws  above  mentioned. 


The  forms  of  the  following  instruments  Mill  be  here  inserted. 

SECTION  r.  GENERAL  AVARRANTT  DEED. 

II.  RELEASE,  OR  Q.UIT   CLAIM  DEED. 

III.  MORTGAGE. 

IV.  LEASE. 

v.        POWERS  OF  ATTORNEY  TO  SELL  AND  LEASE  LANDS. 
Vr.       POWER  OF  ATTORNEY  TO  COLLECT  DEBTS. 

VII.     WARRANT  OF  ATTORNEY  TO  CONFESS  JUDGMENT  IN  THE  COURT 
OF  COMMON  PLEAS  OR  SUPREME  COURT. 

VIIL    WARRANT    OF    ATTORNEY    TO    CONFESS    JUDGMENT   BEFORE  A 
JUSTICE  OF  THE  PEACE. 

IX.  ARBITRATION  BOND  AND  AWARD. 

X.  COMMON  BOND,  WITH  A  CONDITION 

XI.  INDENTURES  OF  APPRENTICESHIP. 

XII.  BILL  OF  SALE,  AND  MORTGAGE  OF  GOODS  AND  CHATTELS. 

XIII.  PROMISSORY  NOTES. 

XIV.  BILL  OF  EXCHANGE. 

XV.  RELEASE  AND  RECEIPTS. 

XVI.  AGREEMENTS. 

XVII.  LAST  WILL  AND  TESTAMENT. 


504 


S  OF  CONVKYANCES,  &C. 


[Prt.  4, 


Sec.  I. —  GENr:n,AL  warranty  deep. 


Know  all  men  by  these  presents,  that  we,  A 

B ,  wile  of  said  A B ,  of  the  county  of 

sideration  of  the  sum  of 


B ,  anff  r- 

— ,  0//W,  in  con- 
dollars,  in  hand,  paid   by  E —  F — , 


of  the  same  place,  have   bargained  and  sold,  and  do  hereby  grant, 

bargain,  sell,  and  convey,  unto  the  said  E-^^  F ,  his  heirs  and 

assigns  forever,  the   following  premises,  situate  in  the  county  of 

,  in  the  .State  of  Ohio,  and  in  the ,  [^-c]  and  bounded 

and  described  as  follows:  [Here  give  a  descrij)tioii  of  the  jrremises^ 
hij  metes  and  hounds^{\) 

To  HAVE  AND  TO  HOLD  said  prcmises,  with  the  appurtenances, 
unto  the  said  E —  F — ,  his  heirs  and  assigns,  forever,  *  And  the 
said  A—  B — ,  for  himself  and  heirs,  doth  hereby  covenant  with  said 
E —  F — ,  his  heirs  and  assigns,  that  he  is  lawfully  seized  of  the  pre- 
mises aforesaid;''  that  the  premises  arc  free  and  clear  from  all  in- 
cumbrances whatsoever;'^  and  that  he  will  forever  warrant  and 
defend  tlie  same,  with  the  appurtenances,  unto  the  said  E —  F — , 


(&)  A  covenant  of  seizin  in  a  deetl,  when  the 
covenantor  is  in  pos.*ession,  clainiitig  title,  runs 
with  the  land;  that  is,  he  to  wl.oin  tlie  land  is  af- 
terwards convoyed,  is  entitled  to  tlie  henefil  of  the 
covenant,  tl'e  same  as  if  the  covenant  were  made 
to  himself;  hut  where  the  covenantor  is  not  in  pos- 
session, and  the  title  is  defective,  the  covenant  of 
seizin  is  hrokeii  as  soon  as  made,  and  never  at- 
taches to  the  land,  hein<i  in  the  nature  of  a  per- 
sonal covenant.  Jldmr.  of  Baclus,  v.  McCoy,  3 
Ohio  Rep.  il8;  Rubitisonv.  J\,~e!l, 3  id.  F,25;  Mar- 
stun  v.  llobbs,  2  Mass.  Rep.  433;  Williard  vs. 
Twicke/l,  1  N.  n.  Rep.  177.  In  New  York,  how- 
ever, tl  c  covenant  of  seizin  is  considered  as  a  per- 
sonal covenant,  and  if  hroken  at  all,' is  hrokci  the 
moment  it  is  ei_jlered  into.  Orcenby  v.  Kellu^g, 
2  Johns.  Rep  2  ;  Unmilton  v.  Wilcox,  4  Johns. 
Uep.  72;  Jilvrl^  v.  Plietps,  5  Johns.  Rep.  49. 

If  the  ffranlor  has  not  possession  and  title,  or  if 
he  had  pos.session,  and  the  grantee,  or  those  under 
whom  l.p  clnim-=,  lose  the  land  on  account  of  a  de- 
fect in  the  title,  ihe  sraiitor  will,  in  scneral,  he  lia- 
ble on  this  covenant  lo  pay  liaiM<  the  consideration 
money  that  I  e  received,  with  interest.  .Admr.  of 
Backns  v.  McCoy,  3  r)|)io  Rep.  221;  and  see  Kin? 
V.  Kerr's  Admrs.  5  (d.  1.'.6;  Guthrie  v.  Pugslcy, 
12  Johns.  Rep.  126;  Piaals  v.  Ten-Eycks.  3  Cain. 
Rep.  111.  The  covenant  of  seizin,  and  of  good 
ri^tit  and  lawful  authority  to  conveyt  are  synony- 
mous.    Per  Parsons,  C.  J.  4  Mass.  Rep.  437. 

(bi  Under  the  covenant  aiainst  incundirances, 
tVe  sraniee  has  his  remedy  hy  action  ajxainst  the 
coveiranior, — 

1st,  If  tie  plainiitriias  extinguished  the  incum- 
brance by  payin?  it  off,  or  purchasing  it  in,  lie  is 
entitled,  on  this  covenant,  to  the  amount  so  paid. 


Prescott  V.  Trueman,  4  Mass.  629;  Hall  v.  Dean, 
13  Johns.  Rep.  105  ;  Delaver^ne.  v.  Norris,  7 
Johns  Rep.  357.  If  the  pl;iintill"  has  been  sub- 
jected to  a  suit  and  costs  on  account  of  the  in- 
cuiid.rance,  he  isalso  fulitled  to  those  costs  from 
tie  covenantor.  Waldo  v.  Long,  7  Johns.  Rep. 
173. 

2d,  If  the  incumbrance  is  outstandins  and  un- 
extincuished  at  the  time  suit  is  hrouf.'ht  against 
the  covenantor,  the  plaintilf  can  only  recover 
rotninal  damajjes.  Duval  v.  Craic,  2  Whea. 
62;  Prescott  v.  Trueman,  4  Mass.  Rep.  630; 
Delavergne  v.  Norris,  7  Johns.  Rep.  357. 

3d,  If  the  grantee  is  evicted  or  turned  out  of 
possession,  by  an  action  of  ejectment  under  a 
better  title,  the  covenantor  is  liable  under  lliis 
covenant.     Id.  ih 

4tli,  Where  a  third  per.son  is  in  possession  of 
the  lands  conveyed,  and  tfie  grantee  is  unable 
to  ohtairi  possession  in  consequence  of  the  pos- 
session being  under  a  better  title,  it  is  equivalent 
to  an  eviction,  and  a  breach  of  this  covenant. 
Duval  v.  Craig,  2  Whea.  62. 

A  paramount  or  better  title,  (4  Mass.  629,) 
a  widow's  right  of  ilovver,  a  mortgage,  (7  Johns. 
Rep.  173,)  every  right  to  or  interest  in  the  land 
granted,  to  the  dimimition  of  the  value  of  the 
land  granted,  hut  consistent  with  tlie  passing  of 
the  fee  of  it  by  the  conveyance,  is  an  incum- 
brance. Id.  ib.;  and  16  Johns.  Rep.  122  ;  13 
Id.  105. 

When  the  incumbrance  is  known  to  both  par- 
ties, and  will  benefit  or  injure  the  pir.inliff  ac- 
cording to  circumstances,  it  is  not  included  in 
the  covenant.  Spring  v.  Tongue,  9  Mass.  Rep. 
2ft;  and  see  Co.  Litt.  384  a,n.  1  ;  Com.  Dig.  3, 
?51,  p.  85. 


(1)  Deeds  ai-e  often  defective  for  want  of  a  full  and  accurate  description  of  the 
premises  intended  to  i)c  conveyed.  A'ery  great  care  is  required  in  this  part  of  a 
deed. 


§1,2.] 


FORMS  OF  CONVEYANCES,  &C, 


505 


his  heirs  and  pssigns,  against  the  lawful  clains  of  all  persons  whom- 
soever.'^ 

In  testimon^^  whereof,  the  said  A B ,  and  C B , 


have  hereunto  set  their  handsjind  seals,  this 


day  of 


in 


the  vear  of  our  Lord  one  thousand  eight  hundred  an  J  — 

A B— 

C B — 

Executed  in  presence  of  ^ 

R S ,  } 

T U .  S 


■  (Seal.) 
(Seal.) 


For  the  form  of  the  acknowledgment,  see  page  191. 


Sec.  II. A  RELEASE,  OR  deed  of  Q.U1T  CLAIM. 


Knov/  all  men  by  these  presents,  that  lue^  A —  B — ,  and  C —  B — , 

wife  of  said  A —  B — ,  m  consideration  of  the  sum  of dollars 

in  hand,  paid  by  E--  F — ,  do  hereby  remise,  release  and  forever 
quit  claim,  unto  the  said  E —  F — ,  his  heirs  and  assigns,  forever,  all 
our  title,  interest,  and  estate,  legal  and  equitable,  in  the  following 

premises,  with  the  appurtenances,  situate  in [^■<^-]  'T-^d  bounded 

and  described  as  follovv's: — [here  give  a  description  of  the  premises.] 
In  testimony  whereof,  we  have  hereunto  set  our  hands  and  seals, 

this  —  day  of ,  A.  D.  1 8—. 

A B (Seal.) 

C B {Seal.) 

Executed  in  presence  of  i 

R S ,  } 

T U .  ) 

For  the  form  "of  the  acknowledgment,  see  page  191. 


(a)  The  covenant  of  warranty,  is  not  a  mere 
personal  covenant,  but  has  respect  to  the  land,  and 
until  broken,  passes  with  the  land  to  the  lieirs 
of  the  grantee;  or  if  the  land  be  coveycd  or  as- 
signed, it  goes  to  the  ansi^nee;  and  when  after- 
wards broken,  the  lieir  or  nssifinee  ii)jiirc<l  by  tlic 
breach,  can,  in  liis  own  name,  sustain  an  action 
against  the  warrantor.  Kin^  v.  Kerr's  Jjilnirs, 
5  Ohio  Kep.  15G.  The  liolder  of  a  covenant  of 
warranty,  at  the  time  of  eviction,  may  maitilain 
a  separate  action  against  every  intermediate  war- 
rantor, whom  Ire  may  prosecute  to  judgment;  l)Ut 
lie  can  only  obtain  one  satisfaction.  Id.  ib.  The 
plaintiff  can,  in  general,  recover  only  tlie  amount 
he  paid,  with  interest,  and  the  costs  of  the  action 
of  ejectment  instituted  against  liim  by  the  true 
owner  of  the  land.  Bennett  v.  .lenldns  et  al.  13 
Jolins.  Ue[i.  50;  ^i  Hall's  L.  Journal  3.50;  but  Kce 
.3  -Mass.  Rep.  .52;i;  Coxe's  Kep.  17.5;  Coop.  Jus. 
618;  3  Call.  326;  1  Day.  19.  265;  1  Mumf.  IM; 


Kirby  3.  But  this  amount  may  be  controlled 
by  the  occupying  claimant  law.  King  v.  Kerr's 
Jdmrs.  5  Ohio  Rep.  156.  To  support  an  ac- 
tion for  a  breach  of  this  covenant,  the  plaintiff 
must,  in  general,  have  been  evicted  by  a  better, 
jiaraniount  titLe.  Marston  v.  Jlobbs,  2  Mass. 
Rep.  431;  Kent  v.  Welch,  7  Johns.  Rep.  258- 
And  therefore,  if  there  be  no  such  lands  as  the 
deed  purports  to  convey,  there  is  no  breach  of 
this  covenant.'  Vavdciharr  v.  Vanderharr,  11 
John!5.  Rep.  122.  Although  a  judgment  of  a 
court  of  law  is  necessary  to  efl'ect  a  strict  and 
technical  eviction,  yet  where  a  third  person  has 
the  legal  title,  and  the  plainlift  permits  him  to 
take  possession  without  suit,  it  i.?  such  an  evic- 
tion, or  ouster,  as  to  entitle  the  pliiintiir  to  an 
action  on  the  covenant.  Core  v.  Brazier,  3 
Mass.  Rep.  540;  l/aini/lon  v.  Cults,  4  Mass. 
Rep.  349;  Spraguc  v.Jia^er,  17  Mass.  Rep.  586. 


64 


506  FORMS  OF  CONVEYANCES,  8lC.  [Frt.  4, 


Sec.  III. MOJITGARE. 

Follow  the  form  of  the  general  warranty  deed^  on  page  504,  from 
the  beginning  to  the  *,  and  from  that  point  proceed  as  foUoivs: 
'.^jioviDED  AMVAYs,  and  these  presents   are  upon   this  condition, 

Wtk  wliereas,  said  A B hath  executed  to  said  E F , 

his  promissory  notes,  [or  say^  single  bill,  or  bond,  as  (he  case  maybc^ 
of  even  date  herewith,  for  the  payment  of  the  following  sums  of 

money,  at  the  times  following: dollars,  on  the day  of 

,  in  the  year, ,  icith  interest;  and dollars,  on  the 

[<!^'c.  stating  the  several  installments^ 

Now,  if  the  said  A B shall  pay  said  several  sums  of  mo- 
ney to  said  E F ,  or  his  assigns,  when  the  same  respective- 
ly become  due,  with  the  interest,  then  these  presents  to  be  void; 
otherwise  to  be  and  remain  in  full  force. 

In  testimony  whereof,  the  said  A B ,  and  C B , 

have  hereunto  set  their  hands  and  seals,  this day  of ,  in 

the  year . 

A B ,  {Seal.) 

Executed  in  presence  of  ^  C B ,  (Seal.) 

R S .,  }      . 

T U .  S 


For  the  form  of  the  acknowledgment,  seepage  191. 

The  covenants  of  general  warranty  are  unnecessary  in  a  mortgage. 

Sec  IV. —  LEASE. 

This  agreement,  between  A B and  C D ,  witnesseth: 

That  said  A B ,  in  consideration  of  the  covenants  of  said 

C D ,  herein  mentioned,  doth  hereby  demise,  grant,  and  to 

farm  let  unto  said  C D ,  his  executors  or  administrators, 

from  the day  of ,  in  the  year ,  until  the day  of 

,  in  the  year ,  the  following  premises:  [here  describe  the 

premises!]    And  the  said  C D ,  in  consideration  thereof,  doth 

hereby  covenant  and  promise  to  pay  said  A B the  rent 

following:  \_here  state  the  amount  of  money.,  or  other  thing.,  to  be  paid., 

and  when.']     The  said  C D ,  for  himself  and  assigns,  also 

covenants  and  agrees,  to  pay  all  taxes  imposed  or  assessed  upon 
said  premises  during  said  term,  [or  say^  during  the  past  year,]  to 
keep  said  premises  in  as  good  repair  as  they  now  are  in,  casualties 
by  fire  excepted-,  to  cultivate  said  premises  in  a  good  and  husband 

like  manner;  and  quietly  yield  their  possession   to  the  said  A 

B ,  his  heirs  or  assigns,  at  the  expiration  of  said  term.  In  wit- 
ness whereof,  &c. 

Written  leases  of  lands  for  a  longer  term  than  three  years,  must 
be  executed  and  acknowledged,  and  may  be  recorded  in  the  same 
manner  that  deeds  are.  See  page  503.  As  to  verbal  leases  see  ante 
p.  304.    For  the  form  of  the  acknowledgment,  see  page  191. 


§3,4,5,6.]  FORMS  OF  CONVEYANCES,  &C.  507 

Sec.  v. — POWERS  of  attorney  to  sell  and  lease  lands. 

Poivey-  of  attorney  to  sell  land. 

Know  all  men  by  these  presents,  that  Ave,  A B ,  and  C 

B ,  (wife  of  the  said  A B .)  of ,  do  hereby  consti- 
tute and  appoint  E F ,  of ,  our  attorney,  for  us  and  in 

our  names  to  bargain,  sell,  and  convey,  in  fee  simple,  by  deed  of 
genei-al  warranty,  for  such  price,  upon  such  terms  of  credit,  and  to 
such  person  or  persons,  as  he  shall  think  fit,  the  whole  or  any  part 

of  the  following  premises,  situate  in  ,  [c^c]  and  bounded  and 

described  as  follows:  [Jiere  describe  the  premises^  Hereby  ratifying 
and  confirming  all  such  bargains,  receipts  for  purchase  money, 
agreements  and  deeds,  as  shall  be  made,  executed,  or  acknowledg- 
ed, in  the  premises,  by  our  said  attorney,  the  same  as  if  we  were 
personally  present  and  did  the  same.     In  witness  whereof,  &c. 

For  the  form  of  the  acknowledgment,  see  page  191. 

This  power  of  attorney  should  be  executed,  acknowledged,  and 
recorded,  in  like  manner  as  a  deed;  see  page  502. 

An  attorney  should  sign  a  deed  or  other  instrument  thus: 

A B ,  [tlie  name  of  the  pi'i?icipal.]  (Seal.) 

by  E F ,  his  attorney  in  fact.(l)  (Seal.) 

Power  of  attorney  to  lease  lands. 

Know  all  men  by  these  presents,  that  I,  A B ,  of , 

do  hereby  constitute  and  appoint  E F ,  of ,  my  attor- 
ney, far  me  and  in  my  name  to  demise,  lease,  and  to  farm  let,  by 
leases,  duly  executed,  for  such  term  or  number  of  years,  to  such 
person  or  persons,  at  such  yearly  or  other  rents,  in  money  or  kind, 
as  he  may  think  fit,  the  following  premises,  or  any  part  thereof,  sit- 
uate in ,  [<^r.]  and  bounded  and  described  as  follows:  [^liere  de- 
scribe the  premises.]  Hereby  ratifying  and  confirming  all  such  agree- 
ments, receipts  for  rent,  leases,  and  other  things,  which  shall  be 
made,  executed,  or  acknowledged  in  the  premises,  by  my  said  attor- 
ney, the  same  as  if  I  were  personally  present,  and  did  the  same.  In 
witness  whereof,  &c. 

For  the  form  of  the  acknov/lcdgment,  see  page  191. 

This  power  of  attorney  should  be  executed,  acknowledged,  and 
recorded,  in  like  manner  as  the  preceding  power  of  attorney  to  sell 
land. 

Sec.  A^I. —  power  of  attorney  to  collect  debts. 

Know  all  men  by  these  presents,  that  I,  A B ,  of , 

do  hereby  constitute  and  appoint  E F ,  of ,  my  attor- 


[1]   See  puf,'es  20,  21. 


508  FORMS  OF  CONVEYANCES,  &C.  [^Pavt  4, 

ney,  for  me  and  in  my  name,  and  for  my  use,  to  collect  by  suit  or 
otherwise,  and  upon  payment  to  him  to  receipt  for,  (by  release,  un- 
der seal  or  otherwise,)  all  debts  and  demanils  whatsoever  due  or 
owing  to  me;  and  especially  [/tcre  iiiny  be  slated  any  particidar  debt 
which  the  attorney  is  to  collect^  though  such  statement  is  not^  in  general^ 
necessary.^  Wiiatsoever  my  said  attorney  shall  lawfully  do  in  the 
premises,  I  do  hereby  confirm,  the  same  as  if  I  was  personally  pre- 
sent, and  did  the  same.     In  witness  whereof,  &,c. 

Sec.  VII. AVARRANT  OF  ATTORNEY  TO  CONFESS  JUDGMENT  IN  THE  COURT 

OF  COMMON  PLEAS  OR  SUPREME  COURT. 

I  do  hereby  authorize  and  empower  A B ,  [here  naming 

an  attorney  at  laic^']  or  any  other  attorney  at  law  in  the  State  of 
Ohio,  to  appear  in  any  court  of  record  in  said  State,  at  any  regular 
term  of  such  court,  and  wave  the  issuing  and  service  of  process,  and 

confess  a  judgment  against  me,  and  in  favor  of  C D ,  for 

the  sum  of dollars  and cents,  and  costs^  ivith  interest  from 

this  date  to  the  time  of  the  rendition  of  said  judgment^  and  thereupon 
to  release  all  error,  and  wave  all  right  and  benefit  of  appeal  in  my 
behalf 

January  1 ,  \U1 .  Y X .     {Seal) 

Sec.  VIII. AVARRANT  OF  ATTORNEY  TO  CONFESS  JUDGMENT   BEFORE  A 

JUSTICE  OF  THE  PEACE. 

I  do  hereby  authorize  and  empower  A B ,  \it  is  not  neces- 
sary that  the  person  here  named  should  be  an  attorney  at  Zau',]  to  ap- 
pear before  any  justice  of  the  peace  of — —  county,  at  any  time 

after  the day  of ,  in  the  year ,  and  for  me  and  in  my 

name  wave  the  issuing  and  service  of  process,  and  confess  a  judg- 
ment against  me  in  favor  of  J S ,  for  the  sum  of dollars 

cents,  and  costs,  with  interest  from  the day  of ,  in 

the  year ,  to  the  time  of  the  rendition  of  said  judgment,  and 

thereupon  release  all  error,  and  wave  all  right  and  benefit  of  stay 
of  execution  and  aj)peal  in  my  behalf. 

January  1 ,  \^'\1 .  Y X .     {Seal) 

Sec  IX. ARBITRATION  BOND  AND  AWARD.(l) 

1.    COMMON  ARBITRATION  BOND. 

Know  all  men  by  these  presents,  that  I,  A B ,  am  held 

and  bound  to  C D ,  in  the  sum  of dollars;  for  the 

payment  of  which,  I  do  hereby  bind  myself  Sealed  with  my  seal, 
and  dated  this day  of ,  in  the  year . 


[1]  As  to  Arbitrations  g-enerally,  see  pages  206  to  209f 


§7,8,9.]  FORMS  OF  CONVEYANCES,  &C,  509 

The  condition  of  this  obligation  is  such,  that  if  said  A B , 

or  his  executors  or  administrators,  on  his  or  their  part  and  behalf, 

should  abide  by  and  perform  the  award  of  E F ,  G 

H ,  and  I J oj-  any  two  of  them;{\)  and  which  arbitra- 
tors have  been  chosen  by  said  A B and  C D ,  to 

award  and  determine  all  differences,  damages,  claims,  and  demands 
whatsoever,  both  in  law  and  equity  now  existing  between  them,(2) 
so  AS  the  said  award  be  made  in  writing,  inider  the  hands  of  the 
said  arbitrators,  or  any  two  of  them,  and  ready  to  be  delivered  to 

said  parties,  on  or  before  the day  of ,  A.  D. ; 

and  the  said  arbitration  be  held  at  the  office  of  R M ,  in 

the  township  of ,  in  the  county  of  ,  on  the  

day  of ,  A.  D. ,  the  arbitrators  having  liberty  thereaf- 
ter to  adjourn  from  time  to  time,  but  not  beyond  the  period  above 
mentioned  for  the  dehvery  of  the  said  award;  *  and  in  case  the 
said  arbitrators  should  not  be  able  to  agree,  if  the  above  bound 

A B ,  or  his  executors  or  administrators,  on  his  or  their  part 

should  in  all  things  abide  by  and  perform  the  umpirage  of  G 

H ,  a  person  indifferently  chosen  by  the  said  parties,  [or,  if  the 

umpire  is  to  he  appointed  by  ilie  arbitrators^  instead  of  saying  '•'•G 

H ,"  say^  of  such  other  person  as  said  arbitrators  shall  verbally 

or  otherwise  at  any  time  appoint,]  as  umpire  in  the  premises,  so  as 
the  said  umpire  make  his  umpirage  in  writing,  and  ready  to  be  de- 
livered to  said  parties  on  or  before  the day  of ,  A.  D, 

;  *  then  the  above  obligation  to  be  void  and  of  no  effect: 

otherwise  to  be  and  remain  in  full  force  and  virtue  in  law.     [Here 

add^  if  the  award  is  to  be  made  a  rule  of  court:  and  the  said  A 

B doth  hereby  consent  and  agree  that  this  his  submission,  shall 

or  may  be  made  an  order  or  rule  of  the  court  of  common  pleas  of 
county  .](3) 


2,    AWARD  BY  THREE  ARBITRATORS, 

Whereas,  differences   have    arisen   between  A B and 

C D ,  and  they,  on  the day  of ,  A.  D. , 

[date  of  the  arbitration  bo?id^]  by  arbitration  bonds,  then  executed 
by  them,  submitted  to  the  undersigned  to  determine  and  award 
upon  [here  staling  ivhat  matters  are  submitted  to  them,  as  thus:  all  dif- 
ferences, damages,  claims,  and  demands  whatsoever,  both  in  law  and 
equity  then  existing  between  them.] 

In  pursuance  of  said  submission,  the  undersigned  arbitrators  met 

at  [here  state  the  time  and  place  directed  bi/  the  arbitration  bunds  for  the 

first  meeting  of  the  ai'bitrators^  (the  parties  being  present,)  and  hav- 


(1)  If  three  arbitrators  are  mentioned,  omit  the  part  between  the  two  stars. 

(2)  As  to  the  eflTect  of  these  {j^eneral  words  used  in  tlie  siii)inission,  see  pag-e  208. 
If  the  parties  wish  to  confine  the  award  to  a  particular  difttTencc,  a  brief  state- 
ment of  that  difference  should  be  g-iven  in  the  bond  in  the  phice  of  these  general 
words.  ^ 

(3)  See  as  to  awards  being  made  a  rule  of  court,  Stat.  fiV  to  69. 


510  FORMS  OP  CONVEYANCES,  &;c.  [Pflr^  4, 

ing  then  and  there  taken  upon  ourselves  tlie  burden  of  said  submis- 
sion, heard  the  proofs  and  allegations  of  said  parties,  and  adjourned 

to  meet  at  the  same  place  on  the day  of ,  then  next; 

and  at  the  time  and  place  last  mentioned  we  again  met,  [the  parties 
being  present.]  And  now,  at  the  time  and  place  last  mentioned, 
the  undersigned  do  hereby  make  and  publish  the  following  as  their 
final    award    in    the   said  premises.      We  do  order,  adjudge,  and 

AWARD, 

First — That  the  said  A B ,  on  or  before  the day 

of ,  in  the  year ,  pay  the  said  C D the  sum 

of . 

Second — That  the  said  C D ,  upon  receiving  said  sum  of 

■  dollars,  execute  to  the  said  A B ,  a  release  under 

seal,  of  all  demands,  claims,  and  damages,  whatsoever,  both  in  law 
and  equity,  which  existed  between  them  at  the  time  of  the  execu- 
tion of  said  arbitration  bonds.     [Stating  the  matters  awarded^ 

In  witness  whereof,  we  have  liereunto  set  our  hands,  this  —  day 
of ,  A.  I). — .  {Signed.) 

There  should  be  duplicates  made  of  the  award,  and  one  delivered 
by  the  arbitrators  to  each  of  the  parties.^ 


Sec,    X. COMMON  BOND,  WITH  A  CONDITION. (1 ) 

Know  all  men  by  these  presents,  that  I,  A B ,  am  held 

and  firmly  bound  unto  C D ,  in  the  sum  of dollars; 

for  the  payment  of  which  I  do  hereby  bind  myseH".(2)  Sealed  with 
my  seal,  and  dated  this  —  day A.  D. , 

The  condition  of  this  obligation  is  such,  that  whereas,  the  said 
A B hath  agreed  to  [Jiere  state  what  the  obligor  has  promis- 
ed to  do,  and.  when  he  is  to  pei'foryn^     Now,  if  the  said  A B 

shall  faithfully  perforin  the  several  matters  and  things  above  men- 
tioned at  or  before  the  time  above  mentioned,  then  this  obligation 
to  be  void;  otherwise  to  be  and  remain  in  full  force. 

A li .     {Seal.) 


Sec.    XI. INDENTURES  OF  APPRENTICESHIP. 


Indenture  op  apprenticeship  between  A B ,  [the  name 

of  parent  or  guardian,']  and  C D ,  [the  name  of  the  master^ 

and  E F ,  [the  name  of  the  apprentices^  witnesseth: 

(a)  Stat.  68,  $7. 


(1)  For  the  form  of  a  bond  for  the  payment  of  money,  see  page  384. 

(2)  The  words,  heirs,  executors,  and  administrators,  are  useless.     See  page  384, 
note  (3). 


§10,11.]  FORMS  OF  CONVEYANCES,  &C.  '  511 

That  the  said  E F ,  \tlie  appi-entice^  aged years  on 

the  —  day  of ,  in  the  year ,  by  and  with  the  consent  of 

said  A B ,  his  guardian,  [  or  say^  his  father,  as  the  case  may 

he^  hath  and  doth  hereby  bind  himself  as  an  apprentice  unto  the 

said  C D ,  until  the  —  day  of ,  in  the  year  ■ — ,  from 

the  date  hereof,  to  learn  the  trade  and  occupation  of  a . 

And  the  said  E F ,  for  himself,  and  \07nit  the  loords  "-for 

himself  and,"  if  the  cliild  is  too  young  to  understand  the  nature  of  the 
indenture^  by  his  said  guardian,  [or  father,]  doth  hereby  covenant 
with  said  C D ,  to  faithfully  serve  him,  and  correctly  de- 
mean himself  during  the  term  of  his  apprenticeship. 

And  the  said  C —  D doth  hereby  covenant  with  said  A 

B ,  and  E —  F ,   and  each  of  them,  that  he  will  teach  the 

said  E —  F the  said  trade  and  occupation,  and  will  provide 

/i/m,  during  said  apprenticeship,  with  meat,  lodging,  medicine,  wash- 
ing, clothing,  and  all  other  necessaries  suitable  for  an  apprentice. 
[Here  add^  if  the  apprentice  is  a  jnale  bound  for  Jive  years  or  more: 
"and  will  teach  or  cause  him  to  be  taught  to  read  and  write,  and 
so  much  arithmetic  as  will  include  the  single  rule  of  three."  Bui  if 
a  female^  and  hound  to  serve  for  four  years  or  more^  say^  "and  will 
also  teach,  or  cause  her  to  be  taught,  to  read  and  write,  and  also  the 
four  first  rules  of  arithmetic."  But  if  the  term  of  service  of  a  male 
is  less  thanjive^  or  of  a  female  is  less  than  four  years^  it  would  seein 
that  neither  of  the  above  covenants  is  required  by  laiv.  Whether  the 
apprentice  be  a  male  or  female^  add  tJiefolhioing:']  And  at  the  expi- 
ration of  said  term  of  service,  will  furnish  the  said  E —  F —  with  a 
new  bible,  at  least  two  suits  of  common  wearing  apparel,  and  [iiere 
insert  whatever  other  things  the  master  is  to  give  the  apprentice  at  the 
expiration  of  the  term  of  service^ 

In  testimony  whereof,  the  parties  have  hereunto  set  their  hands 

and  seals,  this  — day  of — ,  in  the  year  18 — . 

A B {Seal.) 

C D {Heal) 

E F {Seal.) 


The  indentures  must  be  signed  and  sealed  by  the  father,  or  in 
case  of  his  death,  by  the  mother  or  guardian.     (See  p.  19G.) 

If  the  indenture  is  made  by  the  trustees  of  the  township,  their 
names  must  be  inserted  in  the  place  of  the  guardiim  or  lather  in  the 
preceding  form;  and  they  should  be  descril)ed  as  the  "Trustees  of 

township, county;"  and  it  should  also  ])c  stated  in 

the  indentures  that  the  chiUI  is  either  "a  destitute  orphan  of 

townsliip,  in county,"  or  "the  child  ol' 11 —  8 ,  who  will 

not  provide  for  it." 

As  to  what  statements  and  stipulations  should  be  contained  in  in- 
dentures, &,c.,  see  page  19G, 


512  FORMS  OF  CONVEYANCKS,  &C.  [Prtr/  4, 

Sec.  XII. BILL  OK  S/VLK,  and  MOIlTCAf.-K  OF  OOODS  AND  CHATTELS. 

In  consideration  of  the  .sum  ol" dollars  in  hand,  paid  by 

C I) ,  1  iiavc   bargained  and  sold,  and  do  hereby  sell  and 

convey  lo  saiil  C D ,  the  goods  and  chattels  mentioned  in 

the  schedule  hereto  annexed.  *  In  witness  whereof,  &c. 

A B (Seal.) 

Possession  of  said  goods  delivered  by  A — 

B to  C 1) ,  by  the  delivery  to 

said  C D of  u7ie  chair  in  the 

name  of  the  whole,  in  my  presence. 

R X . 

Schedule  of  property  referred  to  in  the  above  bill  of  sale:  [//ere 
give  a  scliedule  of  the  p?'o/)erlij.] 

If  the  sale  is  by  way  of  mortgage^  add  the  following  condition  at 
the  *.     Provided  always,  and  these  presents  are  upon  this  condition, 

that,  whereas  the  said  A B is  indebted  to  the  said  C 

D — —  in  the  sum  of dollars cents,  payable  on  the 

day  of ,  in  the  year ,  with  interest  from ,  by  note  of 

even  date  herewith,  for [he?-e  state  particularly  how  the  debt 

arose^ 

Now  if  the  said  A B shall  punctually  pay  said  sum  of 

money,  with  the  interest,  when  the  same  shall  become  due,  then 
this  conveyance  to  be  void;  otherwise  to  be  in  full  force.     The  said 

A B is  to  retain  possession  of  said  property  until  said  debt 

becomes  due,  and  upon  default  of  payment  of  said  moneys,  shall 
redeliver  the  said  property  to  the  said  C D .(1) 

Sec.    XIII. PROMISSORY  NOTE.(2.) 

For  value  received,  I  [or,  if  there  be  two  who  sign  the  wofe,  say, 

we,  or  either  of  us,]  promise  to  pay  C D ,  or  order, 

dollars cents,  on  or  before  the day  of ,  in  the  year 

,  with  interest  from  date. 

(Signed,)  A B . 

Columbus.  January  7,  1847. 

Sec.  XIV. —  bill  of  exchange.(3) 

Columbus,  January  7,  1847. 

At  sight,  pay  A B ,  or  order,  dollars cents. 

(Signed,)  C D . 

To  C S . 


[1]  I  will  not  answer  for  the  safely  of  this  conveyance.     But  upon  this  subject, 
seepages,  318,  319. 

[2]  See  otlier  forms,  pag'e  383. 

[3]  See  other  forms,  pages  381,  382,  note  1. 


§  1  2, 1  3, 1 4, 1  5, 1  6.]  FORMS  OF  CONVEYANCES,  &C.  5 1  3 

Sec.  XV. RELEASE  AND  RECEIPTS.(l) 

Release. 

In  consideration  of  the  sum  of  owe  dollar,  received  of  C D 

I  do  hereby  release  and  discharge  him  from  all  actions,  claims,' 
damages,  and  demands  whatsoever,  which  I  now  have,  or  ever  had' 
or  which  my  heirs,  executors  or  administrators  shall  have,  from  the 
beginning  of  the  world  to  the  day  of  the  date  hereof. 

{Seal) 
January  ^,  1847. 

Receipts. 

Received  of  C —  D ,  the  sum  of dollars,  in  full  of  all 

demands  to  this  date. 
January  4,  1847, 

Received,  January  4,  1847,  of  C D ,  the  sum  of , 

on  a  certain  bond  made  by  him  to  me,  dated ,  and  which  is  in- 
dorsed thereon. 


Sec.  XVI. — agreements. 

1.   Comjnon  form  of  an  Agreement.{^) 

Articles  of  agreement  entered  into  this  —  day  of ,  in  the 

year  ,  between  A —  B and  C —  D :  The  said  A — 

B dotii  hereby  covenant  and  agree  with  said  C —  D ,  to  do 

and  perform  the  matters  and  things  following:   1st,  He  will,  on  or 

before  the  —  day  of ,  in  the  year ,  [<^^c.  Here  state  all  that 

A —  B is  to  ffo.]    And  the  said  C —  D doth  hereby  cove- 
nant and  agree  with  said  A —  B ,  to  do  and  perform  the  matters 

and  things  following:  [(^-c.  Here  state  all  tit  at  C — I) —  is  to  do.^ 

In  witness  whereof,  the  said  paities  have  hereunto  set  their  hands 
and  seals. 

A B (Seal.) 

C D (Seal.) 


(1)  As  to  Uie  elTect  of  a  release,  or  receipt,  see  page  190. 

(2)  It  is  in  all  cases  advisable,  when  a  change  in  tiic  terms  of  u  written  or  seal- 
ed contract  is  agreed  upon,  to  indorse  it  upon  the  instrument,  and  have  it  signed, 
and  also  sealed  by  the  parties,  iftiie  original  contract  is  under  seal. 

It  is  not  uncomnioii  for  parties  to  reduce  part  of  a  contract  to  writing,  and  leave 
a  part  to  a  verbal  understanding.  It  is  much  better  not  to  enter  into  any  written 
agreement;  for  the  part  tiiat  is  written  will  be  deemed  the  whole  agreement,  and 
neither  party  will  be  permitted  to  show  that  the  written  agreement  contains  only 
a  part  of  the  terms  of  the  contract. 

G5 


614  FORMS  OF  CONVEYANCES,  8lc.  [Pit.  4, 

2.     An  agreement  for  the  sale  of  Land. 

Articles  of  agreement,  entered  into  this day  of ,  in  the 

year ,  between  A —  B and  C —  D ,  witnesseth:  That 

said  A —  B hath  sold,  and  doth  agree  to  convey  in  fee  simple, 

unto  said  C —  D ,  by  a  good  and  sufficient  deed  of  general  war- 
ranty, on  or  before  the  —  day  of ,  in  the  year ,  (upon  the 

punctual  payment  by  said  C —  D of  the  consideration  money 

hereafter  mentioned,)  the  following  premises,  situate  in  [lirre  men- 
tion the  range,  toirns/i/p^  section.,  lot.,  entry.,  or  survey^  and  bounded 
and  described  as  follows:   [Arre  insert  the  boundaries.^ 

And  the  said  C —  D doth  hereby  agreed  to  pay  the  said  A — 

B the  sum  of  [liere  insert  the  amoiuit  of  the  consideration  money^ 

the  consideration  money  for  said  premises,  in  the  manner  follow- 
ing:   dollars,  on  or  before  the day  of ,  in  the  year 

;  and dollars,  on  or  before  the day  of ,  in  the 

year ,  n-itli  interest  annually.      The  said  A —  B hereby 

agrees  that  the  said  C —  D shall  have  immediate  possession  of 

said  premises,  to  use  and  improve  as  his  own,  in  a  good  and  hus- 
band like  manner. 

In  testimony  -whereof,  the  said  A —  B and  C —  D have 

hereunto  set  their  hands  and  seals. 

A B {Seal.) 

C D {Seal) 

3.  '  Agreement  for  work  and  labor. 
Agreement  between  A —  B and  C —  D- 


The  said  C —  D hereby  covenants  and  promises  to  faithfully 

work  and  labor  for  said  A —  B ,  for  the  term  of ,  com- 
mencing on  the  day  of ,  A.  D. ,  in  the  business  of 

,  and  perform  such  other  services  and  labor  as  the  said  A 

B may  reasonably  require;  for  which  the  said  A B here- 
by covenants  and  agrees  to  pay  said  C D ,  for  said  term  of 

service,  at  the  rate  of dollars  per  7nonth^  in  manner  follow- 
ing: [4"c] 

Either  party  may  put  an  end  to  this  agreement,  by  verbal  notice 

thereof,  or  otherwise;  but  in  such  case  the  said  A —  B agrees 

to  pay  the  said  C —  D for  the  time  he  may  have  worked,  at  the 

rate  of dollars  per  month.(l) 

In  witness  whereof  the  parties  have  hereunto  set  their  hands  and 
seals,  this day  of .  A.  D. . 

4.     Agreement  for  building  a  House. 

An  agreement  of  this  kind  must  be  made  out  as  follows: 
First.  A  d'awing  should  be  made,  siiowing  the  dimensions  of  the 
house,  the  thiclaiess  of  the  walls,  the  height  of  each  story,  the  dimen- 
sions ol  each  room    the  doors,  windows,  fire-places,  clothes  presses, 
pantries,  s:nk,  &c.  &c. 

(1)   See  pag-t-  471. 


§1G.]  FORMS  OF  CONVEYANCES,  &C.  515 

Second.  Specifications  of"  all  the  work,  and  the  mode  in  which  it 
is  to  be  done. 

Third.  The  agreement  between  the  builder,  carpenter,  &c.,  and 
the  employer. 

A  drawing  cannot,  of  course,  be  given  here.  The  following  spe- 
cifications of  the  work  may  afford  some  useful  hints.  They  are 
made  out  without  the  aid  of  a  form,  or  a  very  intimate  knowledge 
of  the  technical  terms  used  by  mechanics. 

No.  1.  Specification  for  digging  the  cellar  of  a  house;  a  drmcing 
of  lohich  is  Jiereunto  annexed: 

The  cellar  to  be  dug  out  three  feet,  each  way,  larger  than  the 
dimensions  of  tlie  building,  [so  that  the  mason  can  conveniently  face 
and  plumb  the  outer  side  of  the  tcall  from  the  foundation.']  If  there 
are  any  soft  parts  in  the  ground  above  the  lines  of  the  foundation, 
trenches  shall  be  cut  through  these  parts,  for  the  footings  of  the 
walls,  to  a  sufficient  depth  to  insure  a  proper  foundation.  The  bot- 
tom of  the  cellar  to  be  dug  out  five  feet  below  the  surface  at  the 
northeast  corner  thereof,  and  the  same  to  be  trimmed  and  worked 
smooth  and  level  throughout.     The  surplus  earth  to  be  smoothly 

spread  round  the  building,  within  thirty  feet  thereof,  and  as  C 

D may  direct.     The  stone  from  the  cellar  to  be  removed  and 

piled  up  thirty  feet  from  the  cellar. 

No.  2.  Specijication  of  the  mason  icorJcfor  the  cellar  of  a  dwelling 
house;  the  draicing  of  ivhich  is  hereunto  annexed: 

The  walls  of  the  cellar  to  be  built  of  the  dimensions  specified  in 
the  drawing  hereunto  annexed.  The  stone  to  be  squared  at  the 
ends,  flushed  in  mortar.  The  wall  faced  on  both  sides,  eighteen 
inches  thick,  seven  feet  high  from  the  surface  of  the  cellar,  laid  in 
good  mortar,  well  tempered.  The  mason  to  find  tenders.  Sand  to 
be  sifted  through  a  screen  whose  wires  shall  be  at  equal  distances, 
and  not  less  than  thirty  in  every  foot  in  breadth.  The  window  and 
door  frames  to  be  properly  bedded  and  pointed  in  good  mortar,  and 
the  sills  underpinned.  Side  walls,  with  stone  steps  of  six  inches 
rise  to  each  step,  to  be  built  at  the  cellar  doors.  The  openings  in 
the  wall  to  he  estimated  and  paid  for  as  solid  loall.  The  corners  to  be 
estimated  by  measuring  the  whole  length  of  the  wall  on  each  side. 

No.  3.  Specijication  of  briclc-l  a  yer''  s  work  for  a  dwelling  house;  the 
drawing  of  which  is  hereunto  annexed: 

The  outer  walls  to  be  built  thirteen  inches,  and  the  partition 
walls  nine  inches  thick.  The  hardest  and  best  burnt  brick  to  be 
laid  to  the  weather,  and  selected  of  a  uniform  color.  The  side 
fronting  the  street  to  be  laid  in  Flemish  l)ond;  the  whole  laid  and 
flushed  solid  \_the  joints  filled  m/;,]  in  mortar,  with  the  apertures  and 


516  FORMS  OF  CONVEYANCES,  &:c.  [PfltrM, 

of  the  heights,  however,  as  specified  in  the  drawings.  The  mortar 
to  be  composed  of  the  best  well  burnt  lime,  and  clean,  sharp  sand, 
well  tempered,  and  sifted  through  a  screen  whose  wires  shall  be  at 
equal  distances,  and  not  less  than  thirty  in  every  foot  in  breadth. 
Fluid  mortar  shall  be  poured  into  the  middle  joints,  made  with  hot 
lime  and  sand.  Arches  to  be  turned,  to  support  the  hearths  and 
chimneys.  The  hearths  to  be  laid,  and  the  bricks  of  the  hearths, 
jambs,  and  breasts,  to  be  rubbed  smooth.  All  the  flues  to  be  fourteen 
inches  square  in  the  clear,  and  drawn  in  above  the  fire  place  to  the 
proper  size,  and  then  carried  up  of  a  uniform  opening,  and  plastered 
throughout  with  mortar  mixed  with  cow  dung.  An  oven  to  be  built 
in  the  kitchen.  All  the  window  and  door  frames  to  be  properly 
bedded  in  mortar,  and  the  stone  sills  underpinned.  The  walls  to  be 
carried  up  in  an  upright,  substantial,  and  workmanlike  manner. 
Wooden  bricks  to  be  fixed  into  the  wall,  and  the  put  holes  to  be 
filled  up.  To  find  tenders,  all  the  ropes,  ladders,  boards,  tackle,  and 
w^orkmanship.  In  estimating  the  work  and  price  per  thousand  to  be 
paid,  all  holes  and  apertures  to  be  deducted,  and  corners  to  be  mea- 
sured but  once. 

No.  4.  Specification  of  carpenter's  and  joiner'*s  icork  upon  a  brick 
house;  a  draicing-  of  ir/iich  is  hereunto  annexed: 

To  prepare  from  time  to  time,  as  wanted,  all  lintels  and  wooden 
brick;  and  to  put  up  the  joists,  &:c.,  from  time  to  time,  when  the 
walls  or  brick  work  is  ready  to  receive  them.  To  square,  frame, 
and  put  in  all  girders,  joists,  trimmers,  studding,  rafters,  and  all  other 
timbers  proper  and  necessary  for  the  said  house,  and  reference  being 
had  to  the  dimensions,  &c.,  mentioned  in  the  said  drawing.  The 
joists  to  be  eighteen  inches  apart,  and  framed  into  girders.  Rafters 
eighteen  inches  apart.  To  be  shingled  with  joint  shingles,  four 
inches  to  the  weather.  Gutter  made  in  cornice,  solid  timber.  Facia 
and  plain  cornice,  with  bed  mould,  returns,  covered,  &:c.  The  win- 
dow frames  in  the  cellar  to  be  made  of  scantling,  with  bars,  and 
rabbited  for  sash  and  sashed.  Trap  doors  to  cellar  to  be  grooved 
and  planed  on  botii  sides,  with  cheeks  framed.  All  other  door 
frames  for  outside  to  be  of  two  inch  oak  plank  planed,  bead  on 
edge,  rabbited;  done  in  best  manner.  Window  frames  two  inch 
oak,  planed,  with  sash  and  shutter  rabbits;  moulding  in  front.  Sash 
to  be  for  12  lights,  12  by  16  glass,  ovalo,  and  to  be  fitted,  &c.  Ve- 
netian shutters  for  all  the  windows,  (except  those  in  cellar,)  made  of 
one  and  a  half  inch  plank;  the  blinds  to  be  morticed  in  the  frame; 
bead  on  edge  of  frame,  mitered.  The  doors  and  windov.'s  in  the 
room  marked  No.  1  on  the  drawing  hereunto  annexed,  to  be  finish- 
ed with  plain  pilasters  of  two  inch  plank  six  inches  wide,  with 
plinths  and  sid>plinths,  and  washboard  to  correspond,  broke  round 
pilasters.  The  other  rooms  to  be  finished  with  double  architraves, 
five  inches  wide,  and  washboard  to  correspond.  The  doors  to  be 
six  panels,  raised  on  both  sides,  with  mouldings  sprigged  on.  The 
stairs  from  cellar  to  first  floor,  and  garret  stairs,  to  be  plain  and 


§16.]  FORMS    OF  CONVEYANCES,  &C.  517 

planed:  the  stairs  from  first  to  second  floor  to  be  six  and  a  half 
inches  rise  for  each  step,  scotia  under  nosing,  plain  bracketed,  dog 
leg  stairs.  The  mantel  in  the  room  marked  No.  1  on  the  drawing 
hereto  annexed,  to  be  finished  with  Ionic  columns  and  capitals,  with 
heavy  plain  cornice,  &c.  to  correspond.  The  mantels  in  the  other 
rooms  to  correspond  with  the  finish  above  described.  Steps,  with 
platform  and  hand  railing,  for  the  outside  doors,  to  correspond  with 
the  stairs  from  first  to  second  iloor  above  described.  The  closets 
marked  on  the  drawing  hereto  annexed,  to  be  finished  with  shelves 
planed  on  both  sides,  and  panel  doors,  raised  on  outside.  Pantry 
in  kitchen  to  be  finished  with  shelves,  and  two  large  drawers.  The 
floors  to  be  ploughed  and  tongued,  secret  nailed,  and  not  exceeding 
six  inches  wide.  Sink  water-tight,  six  feet  by  four,  with  spout,  &:c. 
for  kitchen.  The  sides  of  the  rooms  that  are  made  of  brick  wall, 
to  have  w^edges  inserted  between  the  bricks,  and  upright  strips  of 
waste  boards  nailed  thereon,  ten  inches  apart  to  receive  the  lath. 
To  do  all  the  other  carpenters  and  joiner's  work  in  and  about  said 
dwelling,  not  herein,  nor  in  said  drawing  mentioned,  which  may  be 
necessary  to  finish  and  complete  the  wood  work  in  and  about  said 
dwelling,  to  the  turning  of  the  door  keys.  All  the  said  work  to  be 
done  in  a  good  and  workmanlike  manner., 


FORM  OF  AN  AGREEMENT  FOR  BUILDING  A  HOUSE. 


This  agreement,  between  A —  B and  C —  D ,  witnesseth: 

That  the  specification  hereunto  annexed,  marked  No. ,  and 

every  clause  thereof,  is  made  a  part  of  this  agreement;  and  said 

C —  D hereby  agrees,  on  or  before  the  day  of ,  in  the 

year ,  at -,  to  do,  perform,  finish,  and  complete,  in  the 

manner  therein  stated,  all  the  work  set  forth  and  referred  to  in  said 

specification.    The  work  to  be  commenced  on  the day  of , 

A,  D. .  And  the  said  A —  B agrees  to  furnish  all  the  ma- 
terials necessary  for   said  work,  as  the  same  shall  be  wanted;  and 

to  pay  said  C —  D ,  for  said  work,  reference  being  had  to  said 

specification  in  the  admeasurement  of  said  work,  as  follows:  [here 
state  the  paijments.'] 

If  any  alteration  of,   or  addition  to  said   building,  or  any  part 

thereof,   should  be  directed  by  said  A —  B ,  such  alteration  or 

addition  shall  be  estimated  by  deducting  ten  per  cent  from  the  Cin- 
cinnati hill  of  prices  for   the  like  work,  and  paid  for  by  said  C — 

D accordingly;  and  if  by  such  olteration  or  addition  any  work 

included  in  said  specification  is  not  done,  the  volue  of  such  work 
shall  be  deducted  iVom  tlie  price  agreed  to  be  paid  for  the  whole, 

and  estimated  in  like  manner  as  last  mentioned.     C —  D shall 

dismiss  any  hands  employed  by  him  in  said  work,  whenever  said 
A —  B shall  so  direct. 

In  witness  whereof.  &c. 


518  FORMS  OF  CONVEYANCES,  &;c.  [Par<  4, 


Sec,  XVII.  —  last  avill  and  testamf.nt. 


A  last  will  ;iml  tcstanicnl,  in  order  to  be  valid,  must,  in  general, 
be  signed  by  tlie  ptirty  making  the  same,  or  by  some  other  person 
in  the  presence  ot"  the  testator,  by  his  express  direction;  and  must 
be  attested  and  subscribed  in  the  presence  of  the  testator,  by  two  or 
more  competent  witnesses,  who  saw  the  testator  subscribe,  or  heard 
him  acknowledge  the  same.* 

A  male  under  the  age  of  twenty-one  years,  and  a  female  under 
the  age  of  eighteen  years,  cannot  make  a  will.'' 

The  right  of  the  widow  to  dower,  cannot  be  aflected  by  a  will; 
unless  there  be  a  devise  to  her,  and  the  widow,  within  six  months 
after  the  probate  of  the  will,  makes  known  to  the  court  of  common 
pleas  her  election  to  relinquish  her  dower,  and  claim  under  the  will.'' 

A  will,  or  any  part  of  it,  may  be  revoked  by  the  testator  destroy- 
ing, canceling,  or  obliterating  it,  or  causing  it  to  be  done  in  his  pre- 
sence; or  by  making  a  subsequent  will  or  codicil,  in  the  manner 
above  mentioned.^ 

A  will  made  while  the  testator  has  no  children,  will  be  void  if  he 
afterwards  have  a  child.® 

If  a  witness  to  a  will  is  a  devisee,  or  a  legatee,  and  the  will  can- 
not be  proved  except  by  the  testimony  of  such  witness,  the  bequest 
or  devise  will  be  void;  but  if  the  witness  W'ould  have  been  entitled 
to  any  share  of  the  estate,  in  case  such  will  were  not  established, 
he  will  be  entitled  to  so  much  of  such  share  as  will  not  exceed  the 
devise  or  bequest. s 

A  verbal  will  is  valid  in  relation  to  personal  property  only,  and 
when  made  in  the  last  sickness  of  the  deceased,  and  proved  by  two 
competent  disinterested  witnesses,  who  can  testify  that  the  testa- 
tor was  of  sound  mind  and  memory,  and  that  he  at  the  same  time  cal- 
led on  some  person  present  to  bear  testimony  that  such  was  his  will.*^ 
Such  will,  however,  wmII  not  be  valid,  unless  committed  to  writing, 
and  subscribed  by  the  witnesses  within  ten  days  after  it  is  made,  and 
proved  before  the  court  of  common  pleas  within  six  months  from 
the  time  the  testamentary  words  were  spoken.^ 

The  testator  may,  by  will,  appoint  guardians  for  such  of  his  chil- 
dren as  are  unniarried  and  under  twenty-one  years  of  age  at  the 
time  of  his  decease,  or  whether  then  born  or  not.'' 

These  are  all  the  provisions  of  the  statute  which  it  is  necessary 
for  the  person  to  consult  who  is  about  to  draft  a  will. 

(a)  Stat.  992,  $2.  (p)  Stat.  99.'?.  $12. 

(h;  Id.  4,-33.  (Ii)  Id.  1003,  $68. 

(c)  Id.  99S.  $45.  (i)  M.  100.^  $68,9. 

(d)  Id.ib.  $41.  (k)  Id.  lb.  $66. 
(ej  Id.  997,  $40. 


§17.]  FORMS  OF  CONVEYANCES,  &;c,  519 

FORM  OF  A  WILL. 

In  the  name  of  the  Benevolent  Father  of  all: 

I,  A B ,  of ,  do  make  and  publish  this  my  last  will 

and  testament: 

Item  1st.     I  give  and  devise  to  my  beloved  wife,  in  lieu  of  her 

dower,  the  farm  on  which  we  now  reside,  situate  in ,  &c,, 

containing  about acres,  during  her  natural  life;  and  all  the 

stock,  household  goods,  furniture,  provisions,  and  other  goods  and 
chattels  which  may  be  thereon,  at  the  time  of  my  decease,  during 
her  natural  life  as  aforesaid;  she,  however,  selling  so  much  thereof 
as  may  be  sufficient  to  pay  my  just  debts.  At  the  death  of  my  said 
wife,  the  real  estate  aforesaid,  and  such  part  of  the  said  personal 
property  or  the  proceeds  thereof,  as  may  then  remain  unconsumed 

and  unexpended,  1  give  and  devise  to  my  sons,  C B and 

R B ,  and  their  heirs.     If,  however,  either  of  my  said  two 

sons  should  die,  before  the  decease  of  my  said  wife,  leaving  no  chil- 
dren living  at  the  decease  of  my  said  wife,  then  the  share  of  said 
property  above  devised  to  such  deceased  son,  is  hereby  devised  and 

bequeathed  to  my  son  S B ,  and  his  heirs.     If  both  of  my 

said  two  sons,  C B and  R B ,  should  die  before 

the  decease  of  my  said  wife,  leaving  no  children  living  at  the  de- 
cease of  my  said  wife,  then  1  devise  and  bequeath  said  property, 

after  the  decease  of  my  said  wife,  to  my  two  sons,  S —  B and 

L B ,  and  their  heirs.     If  my  said  wife  should  not  survive  me, 

then  1  devise  and  bequeath  the  property  aforesaid  to  my  two  sons, 
C —  B —  and  R —  B — ,  and  their  heirs  forever. 

Item  2d.     I  devise  and   bequeath  to  my  son  L —  B — ,  and  his 

heirs,  the  farm  on  which  S —  R —  now  resides,-  situate ,  &c., 

containing ,  &c. 

Item  3n.     I  do  hereb}'  nominate  and  appoint  my  beloved  wife 

guardian  of  my  daughter  M B ,  until  the  said  M B • 

arrives  at  the  age  of  twenty-one  years,  or  intermarries;  but  in  case 
my  wife  should  again  marry,  her  guardianship  of  said  child  shall 
cease  and  determine  upon  her  intermarriage;  and  in  her  place  I  do 

hereby  nominate  my  esteemed  friend,  P W ,  to  have  the 

guardianship  of  my  said  d  lughter,  until  she  arrives  at  the  age  of 
twenty-one,  or  intermarries.  1  do  hereby  nominate  and  appoint 
my  esteemed  fiiend  P —  W — ,  guardian  of  my  sons  E —  B —  and 
R — B — .  until  they  arrive  at  the  age  of  twenty-one  years.  ]\'  the 
said  P —  W —  sliould  die  hefoi'e  my  said  two  sons  arrive  to  major- 
ity, they  or  either  of  them  surviving  him,  then  I  do  a|)point  L —  IM — 
their  guardian  during  their  minority  after  the  decease  of  said  P — 
W — .  My  s;iid  guardians  are  hereby  enjoined  to  give  my  children 
a  good  English  education,  and  to  rear  them  in  habits  of  industry, 
and  inculcate  upon  them,  as  far  as  may  be,  the  duties  of  Chris- 
tianity. 

Item  4th.     I  do  hereby  nominate  and  np])()int  R —  ^^ and 

W — ,  executors  of  this  my  last  will  and  testament,  hereby  au- 


520  Konius  OF  conn  kyajXces,  &c.  [^Pa7't  4, 

thorizing  and  empoweiing  them  to  compromise,  adjust,  release,  and 
discharge,  in  such  manner  as  they  may  deem  proper,  the  debts  and 
claims  due  me,  I  do  also  authorize  and  empower  them,  if  it  shall 
become  necessary  in  order  to  pay  my  debts,  to  sell,  by  private  sale, 
or  in  such  manner,  upon  such  terms  of  credit,  or  otherwise,  as  they 
may  think  proi)er,  all  or  any  part  of  my  real  estate,  and  deeds  to 
purchasers  to  execute,  acknowledge,  and  deliver,  in  fee  simple. 

I  do  hereby  revoke  all  former  wills  by  me  made. 

In  testimony  whereof,  1  have  hereunto  set  my  hand  and  seal,  this 
day  of ,  in  the  year  18 — . 


Signed  and  acknowledged  by  said 

A B ,  as  his  last  will  and 

testament,  in  our  presence;  and 
signed  bv  us  in  his  presence. 

R-^ S , 

T U . 


A B (Seal) 


FOUM  OF  A   CODICIL  TO  A  WILL. 


Whereas,  I,  A —  B — ,  on  the  —  day  of ,  in  the  year  18 — , 

made  my  last  will  and  testament  of  that  day,  do  hereby  declare  the 
following  to  be  a  codicil  to  the  same: 

I  do  hereby  give  and  bequeath  to ,  &c. 

In  witness  whei*eof,  &c.  (1) 


MISCELLANEOUS  DEVISES. 

I  give  and  bequeath  unto  my  esteemed  friend  P —  W ,  whom 

I  appoint  executor  of  this  my'will,  all  my  goods,  chattels,  and  per- 
sonal property  of  every  kind  whatsoever,  in  trust  to  and  for  the  uses 
and  purposes  following: 

The  said  P —  W —  shall  sell,  collect,  and  otherwise  reduce  the 
same  to  cash,  and  after  paying  my  debts,  shall  from  time  to  time 
as  money  may  be  realized  from  said  property,  purchase  therewith 
stocks,  yielding  and  paying  dividends  or  interest.  The  dividend  or 
interest  from  said  stocks  shall  be  paid  over  from  time  to  time  as  the 
same  may  be  received,  to  my  beloved  wife,  L —  B— ,  during  her 
lifetime,  and  upon  her  decease  the  said  stock  and  the  interest  that 
may  be  then  due  thereon,  shall  be  paid,  transferred,  and  delivered 
to . 

I  hereby  constitute  and  appoint  C,  D,  and  E,  all  of ,  and  the 

survivors  and  survivor  of  them,  executors  and  executor  of  this  my 
last  will  and  testament. 

(1)  A  codicil  must  be  signed  and  witnessed  in  like  manner  as  a  will. 


§17.]    •  FORMS  OF  CONVEYANCES,  ETC.  521 

After  payment  of  my  just  debts  and  charges,  I  dispose  of  my  real 
estate  as  follows: 

I  give  and  devise  all  my  messuages,  lands  and  tenements,  where- 
soever situated,  unto  the  said  C,  D,  and  E,  and  their  heirs,  and  the 
heirs  of  the  survivor  of  them,  to  have  and  to  hold  the  same  to  the 
uses  following,  to  wit:  To  the  use  of  them  the  said  C,  D,  and  E, 
and  the  survivor  of  them,  and  his  heirs,  for  and  during  the  life  of 
F —  G — ,  Esq.,  husband  of  my  daughter,  H —  B — ,  and  after  his 
decease,  if  my  said  daughter  shall  survive  him,  to  the  use  of  my 
said  daughter  and  her  heirs  and  assigns  forever;  but  if  my  said 
daughter  shall  not  survive  him,  then,  after  his  decease,  to  the  use  of 
the  children  of  my  said  daughter,  and  their  respective  heirs  forever, 
as  tenants  in  common,  and  the  legal  representatives  of  any  child  of 
my  said  daughter,  who  may  have  deceased,  to  be  entitled  to  the 
same  share  as  his  or  her  parent  would  have  been,  if  then  living. 

And  the  freehold  which  I  have  devised  unto  the  said  C,  D,  and 
E,  and  the  survivor  of  them,  for  and  during  the  life  of  the  said  F — 
G — ,  is  upon  the  especial  trusts  following,  to  wit:  That  they  the 
said  C,  D,  and  E,  and  the  survivor  of  them,  shall,  during  the  con- 
tinuance of  the  said  estate,  take  and  receive  the  rents  and  profits 
accruing  from  the  messuages,  lands,  and  tenements  aforesaid,  and 
therewith  make  all  necessary  repairs,  and  pay  all  taxes  and  other 
necessary  charges  and  expenses  in  and  about  the  same;  and  after 
all  such  payments  deducted,  shall  at  such  times  and  places  annu- 
ally, and  in  such  portions  as  they  (or  the  survivors.)  or  the  survivor 
of  them,  or  the  heirs  of  the  survivor  of  them,  may  deem  expedient, 
pay  over  the  residue  of  such  rents  and  profits  to  my  said  daughter 
during  her  life,  to  her  sole  and  separate  use  and  benefit;  and  after 
her  decease,  in  the  same  manner,  shall  appropriate  and  expend  the 
same  in  the  maintenance  and  education  of  her  children,  or  any  or 
either  of  them,  as  the  said  C,  D,  and  E,  or  the  survivors  or  survivor 
of  them,  may  deem  expedient. 


POWER  TO  SELL,  ETC. 

And  I  do  hereby  authorize  and  empower  the  said  C,  D,  and  E, 
and  the  survivors  and  siu'vivor  of  them,  during  the  life  of  the  said 
F —  G — ,  if  they  shall  jiuigo  expedient,  either  in  the  lifetime  of  my 
said  daughter,  ior  iier  suppni-t  and  maintenance,  oj-  after  her  decease 
in  the  lifetime  of  the  said  F —  G — ,  ibr  the  maintenance  and  echica- 
tion  of  her  children,  or  any  or  either  of  them,  to  sell  and  convey  for 
such  prices  as  they  shall  deem  proper,  in  fee  simple,  or  for  any  less 
estate,  all  or  any  part  of  my  messuages,  lands,  and  tenements  afore- 
said, and  the  whole  proceeds  of  such  sale  or  sales,  or  any  part  there- 
of, or  the  interest  and  income  thereof,  from  time  to  time,  and  at  such 
times  and  places,  in  such  proportions  as  they  may  judge  expedient, 
to  appropriate  to  all  or  any  of  the  purposes  aforesaid;  and  alter  the 

decease  of  the  said  G ,  to  pay  the  whole  prot^eeds  of  such  sales 

then  remaining,  unto  my  said  daughter,  if  living,  for  her  own  use, 

67 


522  FORMS  OF  CONVEYANCES,  &:c.  [Part  4.] 

forever;  otherwise,  to  distribute  the  same  among  her  children,  to 
their  respective  uses  forever,  as  icnnnis  in  common;  and  the  legal 
representatives  of  any  child,  who  may  have  deceased,  to  be  enti- 
tled to  the  same  siiare  as  ids  or  her  parent  would  have  been,  if  then 
livini;. 


A  SHORT  WILL. 

First,  it  is  my  will  that  my  just  debts  and  all  charges  be  paid  out 
of  my  estate. 

Item.  I  give  and  devise  all  the  residue  of  my  estate  to  E — ,  my 
wife,  to  be  to  her  and  her  heirs,  forever. 

Item.     I  aj-)point  and  make  the  said  E ,  executrix  of  this  my 

last  will  and  testament. 


'f^ 


INDEX. 


Abatement  of  Suit;  effect  of,  and  when  it  in  general  takes  place,  24, 

form  of  docket  entry  in  such  case,  24  note  16. 
Absconding  Debtor;  how  proceeded  against,  with  forms  of  process  and 
docket  entries,  217  to  236.  (See  Attachment.) 
statute  of  limitations  does  not  run  against  debts  due  by,  360. 
Absence  J  of  justice  six  months,  vacates  his  office,  4. 

of  debtor  prevents  statute  of  limitation  from  running,  360. 

of  plaintiff  at  time  for  trial,  its  etfect  when  suit  is  by  summons,  44; 

when  suit  is  by  capias,  49  to  51. 
of  defendant  at  time  for  trial,  effect  when  suit  is  by  summons,  45; 

when  suit  is  by  capias,  51,2. 
of  justice,  at  the  time  for  tji'ial,  its  effect,  46. 
from  couaty,  of  attesting  witness  to  an  instrument,  what  proof  of 

the  execution  of  the  instrument  may  be  received,  83,4. 
witness  failing  to  attend  at  trial,  how  proceeded  against,  54  to  5Q] 

failing  to  attend  to  have  deposition  taken,  88. 
when  absence  of  maker  of  note  or  bond,  or  the  drawee  or  acceptor 

of  a  bill,  will  excuse  demand  on  them,  and  when  not,  408,9. 
when  absence  of  a  party  to  a  negotiable  instrument  upon  whom 
notice  should  be  served,  will  excuse  notice,  and  when  not,  408. 
(See  Bill  of  Exchange  —  Promissory  Note  —  Negotiable  Bond.) 
what  constable  to  do  with  prisoner  when  jailer  is  absent,  167. 
Absolute  Promise;  what,  213,  note  1. 

Acceptance  of  a  Bill  of  Exchange;  what  it  is,  395,6.     (See  Bill  of  Exc.) 
Acceptor  of  a  Bill  of  Exchange;  who  so  called,  382.     (See  Bill  of  Exc.) 
Accommodation  Acceptor;  who  is  so  called,  414. 
Accommodation  Indorser;  who  is  .so  called,  li. 

Accommodation  Paper;  what  is  so  called,  and  the  rights  and  liabilities  of 
'  the  parties  thereto,  414.  416.  400.  416  n.  1. 
no  notice  of  demand  and  nonpayment  need  be  given  to  the  party  for 

whose  accommodation  the  paper  is  executed,  408. 
who  is  liable  for  costs,  331.  400. 
Accord  and  Satisfaction;  what,  185. 

must  be  a  consideration  for  an  agreement  to  compromise,  185. 

what  is  a  consideration,  285. 

when  accepting  less  than  the  debt,  in  discharge  of  the  whole,  is 

binding,  and  when  not,  185,6. 
an  accord  must  be  performed  before  it  will  bar  an  action  lor  the 

debt  or  injury,  186. 
payinent  for  goods  wrongfully  taken  makes  the  goods  tlie  wrong- 
doer's, 22,3.  467. 


526  ACT  [Index. 

Account  and  Account  Book;  (as  to  the  j-ights,  &c.  of  parties  wlien  an  ac- 
count is  assigned,  see  Clioses  in  Action;  as  to  account  for  work, 
see  Work  and  Labor.) 
what  is  an  account  b<x)k,  187,8. 

may  be  sued  on  1)oforc  a  justice,  if  bakuice  due  is  less  than  one  hun- 
dred doUars,  6. 
suit  on,  may  be  joined  in  one  action  with  other  cUiims,  13. 
when  it  may  be  proved  by  oath  of  the  party,  187  to  190. 

but  not  if  items  entered  by  a  clerk-,  189. 

or  the  book  is  not  present  at  the  trial,  1 87,8. 

or  the  items  of  more  than  18  months  standing,  189. 

or  charges  not  made  at  the  tiine  of  the  transaction,  187,8. 

or  item  is  cash,  1 86. 

nor  as  to  their  value,  189,90. 

nor  as  to  a  contract  relating  to  the  items,  190. 
what  may  be  proved  by  the  oaih  of  tlic  party,  189,90. 
W'hat  credit  is  to  be  given  to  his  testimony  and  to  the  book,  189. 
when  the  leger  must  be  produced,  190. 

delivery  of  items  may  be  proved  without  producing  book,  189. 
how  items  of  more  than  18  months  standing  may  be  i)roved,  ib. 
form  of  affidavit  against  decedent's  estate,  192. 

form  of  judgment  against  the  administrator  or  executor,  121. 

appeal  from,  how  taken,  194. 

when  execution  may  issue  against  the  administrator  or  exe- 
cutor, 193. 

form  of  the  execlion,  143. 

levy  by  and  return  to  the  execution,  146.  158. 

costs  in  such  cases,  193. 
how  account  in  favor  of  a  decedent's  estate  may  be  proved,  189. 
when  interest  may  be  charged  on  an  open  account,  351,2. 
payments  made  on,  may  be  applied  to  the  earliest  items,  377,8. 
effect  of  settlement  of  account  as  to  mistakes,  &c.  1 90. 282. 
when  master  liable  for  property  sold  to  or  by  servant,  for  him,  22. 
when  husband  liable  for  goods  sold  to  his  wife,  338,9. 
action  on  must  be  commenced  within  six  years,  358. 

when  the  six  years  begin  to  run,  359,60.     (See  Limitation  of 
Actions.) 
bill  of  particulars  must  be  fded,  38.     (See  Bill  of  Particulars.) 

form  of  entry  on  the  docket,  1 17. 

Account  Stated ;  what  is  an,  347  note  1 . 

within  what  time  an  action  on,  will  be  barred  by  the  statute,  360. 
(See  Limitation  of  Actions.) 

Acknowledgment;  (See  Admissions  and  Confessions.) 

Acknowledgment  of  Deeds,  &c.;  form  of,  191. 

may  be  taken  by  justice  in  any  township  in  his  county,  5. 

what  instrument  must  be  acknowledged,  how,  &c.  501  to  503. 

fees  for  certificates  of.  108. 
Acquittal  of  Criminal;  when  criminal  discharged  by  justice,  he  maybe 

again  taken  for  same  offence,  486  note  2. 
Act  of  God ;  what  is  so  deemed,  250.     (See  Carrier  of  Goods.) 
Action;  {^ce  Parties  to  action — Infants — Husband  and  Wife — Partners 
and  partner  ship.) 

cannot  be  brought  until  breach  of  contract  or  injury  done,  360  n.  2. 


Indexi]    ,  ADM  527 

Action — coniiiiued. 

cause  of  action  should  be  stated  on  the  docket,  and  how,  1 1 5. 

the  name  of  the  action  need  not  be  stated  on  the  docket,  8. 

within  what  time  an  action  is  barred  by  statute  of  limitations,  358. 
(See  Limitation  of  Actions.) 

when  one  joint  owner  may  sue  another,  18. 

when  to  be  commenced  by  summons,  and  when  by  capias,  27,8. 
(See  Summons —  Capias.) 

may  be  without  process,  25. 

one  partner  cannot  sue  his  copartner,  375;  exception,  ih. 

what  distinct  causes  of  action  may  be  joined  in  one  suit,  13,14. 

appearance  of  defendant  in,  what  is,  42;  etiect  thereof  as  to  mis- 
takes in  summons,  return,  &c.  43,4. 

of  Trespass  on  the  Case,  in  what  cases  it  may  be  brought,  9,10. 

of  Covenant,  in  what  cases  it  may  be  brought,  11. 

of  Debt,  in  what  cases  it  may  be  brought,  1 1. 

of  Trover,  in  what  cases  it  may  be  brought,  11,12. 

of  Trespass  to  land,  in  what  cases  it  may  be  brought,  13.  459. 
(See  Trespass  to  Land.) 

Adjournment  of  Cause;  fees  for,  108. 

When  suit  is  coinmenced  hy  summons;  for  what  period  the  cause 
may  be  adjourned  by  consent  of  parties,  47 ;  or  when  the  sum- 
mons is  served  in  the  absence  of  the  defendant,  46;  or  when  the 
summons  is  served  on  the  defendant,  &c.  ib.  or  when  a  witness 
is  in  another  State  or  county,  47. 

form  of  athdavit  for  an  adjournment,  ih. 

When  suit  is  commenced  hij  a  capias;  how,  and  for  what  period 
granted,  49,50;  form  of  the  recognizance  for,  and  proceedings 
thereon,  51,2;  form  of  mittimus  on  an  adjournment,  52;  how 
to  proceed  on  the  adjourned  day  of  trial,  50,1,2. 

effect  of,  when  for  greater  period  than  the  law  allows,  48. 

in  action  for  forcible  entry  and  detainer,  215. 

Iji  criminal  cases;  how  long  to  be  granted,  484;  form  of  recogni- 
zance in  such  case,  484;  forfeiture  thereof,  485,6;  form  of  enti'y 
of  forfeiture  on  docket,  489;  effect  of  forfeiture,  486. 
form  of  mittimus  on  an  adjournment,  485. 

Administrators  and  Executors,  cannot  sue  or  be  sued  in  one  action  for 

claims  due  to  or  from  the  decedent,  and  to  or  from  themselves,  13. 

cannot  sue  or  be  sued  on  a  promise  jointly  made  to  or  by  decedent 
and  a  survivor, .16.  19,20. 

cannot  join  or  be  joined  in  an  action  with  other  co-parties,  16.  20. 

can  alone  sue  on  a  contract  made  to  decedent,  15. 

must  sue  for  injuries  done  decedent's  land  before   his  decease,  18. 

what  crops  must  be  taken  by  them,  18. 

cannot  be  sued  as  such  by  capias,  30. 

when  personally  liable  one  promise  to  pay  decedent's  debts,  194. 

may  transfer  and  indorse  negotiable  instruments  belonging  to  de- 
cedent, 390;  their  liability  on  sucli  indorsement,  394;  their  lia- 
bility on  an  indorsement,  394; 

by  continuing  share  of  decedent  in  a  partnership,  how  lialile,  368. 

form  of  aflidavit  to  autlienticate  account  against,  192. 

gCineral  directions  as  to  rejecting  claims  against  estate,  ih. 

how  to  describe  them  in  a  summons,  32. 

form  of  docket  entry  and  judgment  in  suit  against,  120,21. 


528  A  D  V  [Index. 

Administrators  and  Executors — contiymed. 

form  of  execution  against,  143;  what  property  may  be  taken  on,  146; 

form  of  return  to,  158. 
appeal  by,  how  taken,  194. 
of  sister  State,  m;iy  sue  here,  194;  when  they  must  give  security  for 

costs,  or  on  an  appeal,  194. 
have  no  power  over  a  ward  of  decedent,  334. 
have  no  authority  over  an  apprentice  of  decedent,  197. 
form  of  entry  on  the  docket  where  plaintiff  sues  cis,  1 15  note  1. 
how  to  establish  claim  by  decedent's  account  book,  189. 
in  suits  by  and  against,  what  demands  may  be  set  off,  442,3. 
the  rights  and  liabilities  of  administrators  and  executors  of  husband 

or  wife,  for  the  debts,  property,  &c.,  of  each,  336  to  338.     (See 

Hiishand  and  Wife.) 
when  statute  for  limitation  of  actions  operates  on  claim  due  decedent, 

360.     (See  Limitation  of  Actions.) 
Admissions  and  Confessions. 
By  the  parties  to  a  suit; 

by  words,  conduct,  or  silence,  71. 

when  party  may  prove  his  own  declarations,  69.  71. 

when  a  party  may  prove  that  his  admissions  were  false,  71. 

when  they  may  be  received  to  prove  contents  of  a  pajjcr,  and  when 
not,  72.'  77. 

may  be  received  to  prove  facts  out  of  the  paper,  72. 
tenant  cannot  dispute  his  landlord's  title,  iJ. 

exception  to  this  rule,  ib. 
bv  person  under  whom  a  party  claims,  when  admissible  against  him, 

"  69.  306. 
by  co-trespasser  when  evidence  against  all,  73. 
by  agents  when  evidence  against  their  principal,  72. 

the  agency  must  be  first  proved,  ih. 
by  the  wile,  when  evidence  against  the  husband,  72.3. 
by  one  joint  promissor  when  evidence  against  the  others,  73.  362. 
by  partner,  are  evidence  against  co-partner,  372,3. 

but  not  after  partnership  is  dissolved,  373. 
how  to  be  construed,  74. 
must  be  all  ia\c^  fogether,  il. 
which  cannot  be  given  in  evidence,  74,5;  when  made  to  avoid  a  suit, 

and  to  induce  a  compromise,  ih.]  or  when  made  to  an  attorney 

in  his  professional  character,  75;  or  what  others  than  parties  to 

the  suit  have  said,  68;  exception  to  this  rule,  69,70.  306. 
by  criminal,  must  be  voluntary,  without  promise  or  threat,  73. 
Adultery — when  husband  liable  for  necessaries,  after  his  wife  has  com- 
mitted, 339. 
Advertisement,    (See  Notice,)   fees  of  constable  for  writing   or  setting 

up,  109. 
of  sale  on  execution,  how  to  be  made,  and  form  thereof,  155  note  8. 
of  the  issuing  an  attachment  against  a  debtor,  and  how  and  when  to 

be  made,  219;  form  thereof,  231 ;  must  be  proved,  or  plaintifi*  will 

be  nonsuited,  227. 
by  husband,  forbiddinir  persons  to  trust  his  wife,  is  in  general  use- 
less, 339. 
by  partners,  of  the  dissolution  of  partnership,  its  effect,  373. 
by  taker  up  of  stray,  when  to  be  made,  and  form  thereof,  445. 
of  sale  of  stray  or  drift  by  constable,  how  to  be  made,  450.  453. 


Index.]      '  M  r  529 

Advertisement — continued. 

of  appraisement  of  stray  or  drift,  445.  453. 
Affidavit;  fees  for  certifying  proof  of  an  account  against  an  estate,  108; 
for  certifying  and  administering  oath  in  other  cases,  108. 
form  of  oath  or  affirmation  as  to  the  truth  of  an  affidavit,  94. 
Form  of:  whereon  to  issue  a  capias  in  a  civil  suit,  28;  or  execution 
for  the  body,  140;  or  a  common  State  warrant,  479;  or  a  search 
warrant,  480;  or  a  warrant  to  keep  the  peace,  495  n.  2;  to  authen- 
ticate an  account  against  an  estate,  192  n.  2;  to  procure  an  adjourn- 
ment of  a  cause,  47;  to  procure  writ  of  attachment  and  proceedings 
against  a  guruishee,  229;  Avhen  party  denies  the  execution  of  a 
deed,  bond,  note,  &c,  upon  which  suit  is  brought,  82 ;  when  bail  for 
stay  of  execution  require  an  execution  against  the  defendant,  134 
n.  2;  by  woman,  to  obtain  warrant  against  the  father  of  bastard 
child,  265  n.  1 ;  to  procure  appeal  from  an  award,  205  n.  1. 
Affirmation,  (See  Ocdhs  and  Ajfirmalioyis.) 
Affray;  when  prosecutions  to  be  commenced  for,  495. 
•  Vp'TOoeedings  for,  494,5  note  1. 

when  prosecution  to  be  commenced  for  attempting  to  provoke  an  af- 
fray, 494;  proceedings  in  such  case,  494. 
Agents  and  Servants;  (See  Power  of  Altornei/;)  how  authorized  and  how 
they  should  execute  contracts,  and  draw  and  indorse  notes  and  bills 
of  exchange,  21  note  11.  391,2. 
when  personally  responsible  on  bill  of  exchange,  392. 
how  agent  should  execute  a  deed  for  his  principal,  507. 
form  of  acknowledgment  of  deed,  &c.,  by  an  agent,  191. 
payments  made  to,  378. 
*'f^_^vhcn  tliey  may  sue  in  their  own  nam^e,  and  when  not,  17. 
'when  debt  due  from  agent  or  his  principal  may  be  set  ofl',  443. 
when  personally  liable  on  their  contracts,  20,1.  392  note  1. 
when  principal  is  not  bound  by  the  contract  of  his  agent,  20  to  22. 
,  .       392  note  1. 

for  what  injuries  done  by  a  servant  the  master  is  liable,  21,2. 

power  ceases  on  death  of  principal,  21. 

cannot,  in  general,  employ  a  sub-agent,  21. 

if  two  or  more  appointed,  must  all  act  together,  to  bind  the  principal, 

21 ;  but  not  so  as  to  public  officers,  21. 
when  the  agent  or  servant  cannot  be  a  witatiS8_^r  his  principal  or 

master,  59.  '^ 

what  admissions  of,  bind  the  principal  and  master,  72. 
when  the  wife  is  deemed  the  agent  of  the  husband,  340.  72,3. 
when  agent  may  sue  in  his  own  name  on  a  negotiable  instrument 

owned  by  his  principal,  393. 
a  tender  by  or  to  an  agent  for  his  principal,  is  good,  456. 
Agreement,  (Sec  Contracts.) 

Aiders  and  Abettors;  of  an  injury  to  real  or  personal  property,  are  liable 
the  same  as  if  present,  23. 
may  be  witnesses  for  or  against  each  other,  60. 
Allowance;  {^ee  Fees  and  costs;)  how  made,  ascertained,  and  recovered, 
for  kce[)ing  a  stray,  449,50. 
when  nothing  can  bo  allowed  for  keeping  a  stray,  446.  452. 
Alteration;  (Sec  Aracndmcnt;)  effect  of  fraudulently  altering  a  written  in- 
strument by  erasure,  &c.,  291.  416,17. 
riglit  of  parties  when  a  bank  pays  an  altered  check,  420. 
what  alterations  may  be  made  in  entries  o'l  the  docket,  130. 
68 


550  APP  {Index 

Ambassadors;  of  foreign  state,  and  their  servants,  cannot  be  arrested,  29. 

property  of,  cannot  be  taken  on  execution,  146. 
Ambiguity;  \vhich  appears  on  face  of  instrument,  cannot  be  explained  by 
proof,  84,5;  but  if  it  arises  from  some  fact  referred  to  in  the  instru- 
ment, it  may,  85. 
Amendment;  wliat  defects  in  entries  on  docket  may  be  amended,  130. 

by  constable,  of  his  return,  41. 
Animals;  (see  Strays;)  what  injuries  by  animals  the  owner  is  liable  for,  10. 

Avhen  a  person  is  justified  in  killing  the  animals  of  another,  10. 
Appeal;  may  be  laken,  ^vom  fmal  judgments  generally,  123;  though  stay 
of  execution  is  entered,  124;  from  judgment  rendered  for  a  penalty 
123;  from  judgment  on  the  trial  of  right  of  property  taken  by  at- 
tachment, and  how,  222;  from  any  judgment  rendered  in  attach- 
ment, 229;  from  judgment  rendered  on  an  award  before  a  justice, 
and  how,  205. 

cannot  he  taken,  from  contested  elections  of  justice,  3;  nor  from  judg- 
ment rendered  in  criminal  cases,  123;  nor  from  judgment  rendered 
upon  confession,  123;  nor,  in  general,  from  judgment  rendered  on 
an  award,  205;  nor,  in  certain  cases,  where  surety  sues  his  princi- 
pal, 124;  nor  in  action  of  forcible  entry  and  detainer,  124;  nor  from 
trial  of  right  of  property  taken  on  execution,  174.  4G9. 

must  be  taken  in  ten  days,  124;  how  this  time  is  computed,  157,  n. 

when  transcript  to  be  bled  in  court,  and  effect  of  not  filing  it,  125,  n. 

how  taken,  amount  of  recognizance,  and  form  thereof,  124;  by  admi- 
nistrators and  executors  of  this  and  sister  states,  194. 

who  to  pay  costs  on  the  appeal,  generally,  125,  note  4. 

what  papers  the  justice  must  transmit  to  court,  and  when,  125. 

after  appeal  bond  is  executed,  justice  must  recall  execution,  and  how, 
125.  134;  can  do  nothing  more  until  he  receives  a  certificate  from 
the  clerk  of  the  court,  125. 

how  justice  to  proceed  if  both  parties  fail  to  enter  appeal  in  court,  126 ; 
or  if  the  appeal  is  quashed,  108.  125;  or  if  the  appeal  is  dismissed, 
126;  forms  of  scire  facias  and  docket  entries  in  proceedings  on  the 
appeal  bond,  126  to  129.     (See  Bail.) 

when  the  appeal  is  not  entered,  or  is  quashed,  the  surety  for  the  ap- 
peal is  discharged,  126. 
Appearance  to  the  Action;  what  is,  42. 

defendant  carmot  afterwards  object  to  mistake  in  process,  return,  or 
name  by  which  he  is  sued,  43,4. 

When  suit  is  by  summons:  how  to  proceed  when  plaintifT  fails  to  ap- 
pear, 44;  or  the  defendant  fails  to  appear,  45;  or  both  parties  fail 
to  appear,  or  the  justice  fails  to  attend,  45,6. 

When  suit  is  by  Capias:  bow  to  proceed  when  plaintiff  fails  to  ap- 
pear, 49;  or  the  defendant  forfeits  his  recognizance,  51,2. 

in  forcible  entry  and  detainer,  effect  on  omissions,  &c.  in  service  of 
process,  43.  303. 
Appointment;  when  justice  may  appoint  a  constable,  and  form  thereof, 
271,  and  note. 

of  freeholders  to  estimate  allowance  for  keeping  a  stray,  450  n.  1. 

of  appraisers  of  stray,  and  forms  thereof,  446  n.  2. 
Appraisement  and  Appraisers;  of  property  exempt  from  execution,  145,6. 

of  property  taken  on  attachment,  by  whom  and  when  to  be  appraised, 
219;  form  of  oath  to  appraisers,  219  n.  3;  form  of  appraisement, 
232:  fees  of  appraisers,  229. 


hidex.'l  AUB  |»3l 

Appraisement  and  Appraisers, — continued. 

of  a  stray,  by  whom  and  when  to  be  appraised,  446,7;  form  of  order 
to  the  appraisers,  446,  n.  2;  form  of  appraisement  and  oath  of  ap- 
praisers, 447,  notes;  must  be  recorded  in  astray  book,  447;  fees  of 
appraisers  of  strays,  453. 
Apprentice  and  Apprenticeship;  indentures  of,  a  form. for,  510;  what  state- 
ments and  covenants  they  should  contain,  and  how  executed,  196; 
effect  of  omissions  or  mistakes  in  this  respect,  201  n.  2;  when  to  be 
recorded,  and  effect  of  not  recording,  197;  cannot  be  assigned  200; 
how  canceled,  197. 
who  may  be  bound  out  to  service,  and  for  what  time,  195. 
who  may  bind  out  inflmts,  195,6. 

how  apprenticeship  may  end  before  the  term  of  service  expires,  197. 
apprentice  cannot  be  assigned  to  another,  201. 
is  entitled  to  medical  attendance  at  expense  of  master,  197. 
proceedings  against  him  for  bad  conduct,  with  forms,  199,  200,  and 

notes;  etfect  of  judgment  in  such  case,  200. 
not  bound  to  serve  the  executor  or  administrator  of  his  master,  197, 
when  he  cannot  be  a  witness  for  his  master,  59. 

when  master  liable  on  his  contracts  and  for  injuries  done  by  him,  21,2. 
may  be  corrected  by  his  master,  200.  503. 
may  justify  an  assault  and  battery  in  defence  of  his  master,  or  hi« 

master  may  in  his  defence,  493. 
proceedings  against  master  for  cruelty,  neglect,  &c.  with  forms,  197 

to  199;  elfect  of  judgment  in  such  case,  and  how  entered,  199. 
rights  and  remedy  of  master  when  apprentice  is  enticed  away,  har- 
bored, or  employed  by  another,  200,1. 
costs  in  proceedings  by  and  against  master,  how  recovered,  199,  200. 
Arbitrament  and  award;  definitions  of,  202. 
fees  relating  to,  108,9. 
form  of  common  arbitration  bond,  508. 
form  of  award  under  an  arbitration  bond,  509. 

submissio7i  to  arbitrotion;  what,  202;  may  be  b)''  arbitration  bond, 
verbally,  or  otherwise,  206;  hovv'  and  when  it  may  be  revok- 
ed, 207'. 
c/f  suit  j)C7iding  before  a  justice:  when  it  may  be  referred  to  arbi- 
trators, 202;  how  arbitrators  are  chosen,  with  forms  of  citation, 
their  oath  and  award,  202^3  and  notes;  form  of  oath  to  witnes- 
ses in  such  cases,  203  n.  3;  can  only  award  as  to  paym.ent  of 
money,  204;  all  the  arbitratoi-s  should  hear  the  case,  but  two 
may  decide  it,  204;  proceedings  of  the  justice  on  the  award, 
203;  how  and  for  what  the  award  may  be  set  aside  by  the  jus- 
tice, and  proceedings  thereafter,  204,5;  how  an  appeal  may  be 
taken,  ib. 
award:  what,  202. 

when  void,  for  not  specifying  with  certainly  what  is  to  be  done, 
207;  or  on  account  of  arbitrators  not  deciding  upon  all  matters 
submitted,  206;  for  being  made  at  the  wrong  time  or  place,  or 
after  the  decease  of  a  party,  207;  or  being  made  after  the  sub- 
mission was  revoked,  207;  or  relating  to  the  possession  of  or 
title  to  real  estate,  208;  or  not  being  made  in  pursuance  of  the 
submission,  206;  or  arbitrators  awarding  upon  matters  not  sub- 
mitlod  to  them,  206. 
when  void  in  part  and  good  in  i)art,  207,8. 


532  A  s  s  \lndex. 

Arbitrament  and  Award  —  coniinued. 

award  (continued);  in  suit  on,  Avhat  defence   the  defendant  may  set 

up,  209. 
the  etluct  of  a  valid  award  as  a  defence  to  an  action  brought  upon  the 

matters  suhinitteil,  208,9. 
an  award  cannot  be  made  a  rule  of  a  justice's  court,  204. 
Arrest,  what  is,  36,G. 

On  a  capias  ad  respondendum;  when  it  cannot  lie  made,  34;  who  arc 
privileged  from,  28  to  30;  what  persons  privileged  fi'om  arrest 
may  be  taken,  1G7;  cannot  be  made  on~the  fourth  of  July,  nor  on 
the  Sabbath,  34;  may  be  made  on  a  river  which  bounds  this  State, 
34;  irregularity  in  issuing  a  writ  does  not  excu.se  an  arrest,  34; 
must  not  be  served  if  defendant  is  sued  by  a  wrong  name,  34; 
when  doors  and  windows  may  be  broken  open  to  make  an  arrest, 
35,6;  {See  Escape.) 
On  an  cxcculion  for  goods  and  body;  need  not  be  made  until  search 
for  goods,  166;  must  be  made  if  not  sufficient  goods  to  satisfy  the 
whole  execution,  166;  when  it  shall  be  made,  though  there  is  a 
mistake  of  the  defendant's  name  in  the  execution,  167;  who  priv- 
ileged from  arrest,  28  to  30;  what  persons  privileged  from  arrest 
may  be  taken,  167;  when  doors,  &c.  may  be  broken  open  to  arrest, 
167.  35,6;  what  must  be  done  with  the  person  arrested,  167;  (See 
Escape;)  how  far  it  satisfies  the  judgment,  168;  discharge  of  de- 
fendant, or  one  of  two  defendants  from  arrest,  discharges  the  judg- 
ment, 167. 
In  criminal  cases;  who  may  arrest  without  a  warrant,  478,9. 

On  a  common  State  warrant;  officer  not  liable  for,  though  warrant 
irregularly  issued,  482;  officer  should  first  produce  his  warrant 
if  demanded,  482;  what  doors  may  be  broken  open,  and  how  to 
make  an  arrest,  482,3;  accused  may  be  pursued  to  any  county 
in  the  State,  483;  if  wrong  person  arrested  officer  liable,  483; 
when  officer  may  kill  the  accused,  483;  liability  of  officer  for 
delay  in  arresting,  483;  (See  Escapjc.) 
On  a  search  warrant ;  not  to  be  made  if  the  property  mentioned  in 
warrant  cannot  be  found,  482.     (See  Search  warrant.) 
Assault  and  Battery;  civil  action  for,  cannot  be  brought  before  a  Justice,  8. 
what  amounts  to,  492,.3. 

what  is  a  sufficient  excuse  or  justification  for,  493,4. 
in  what  cases  justice  may  fine  for,  494,5  note  1. 
within  what  time  the  prosecution  must  be  commenced,  494. 
form  of  affidavit  and  warrant  thereon,  479,80. 
service  of  warrant,  482,3. 

adjournment  of  trial,  with  proceedings  thereon,  and  on  trial  484  to  487. 
docket  entries,  489. 
Assembly,  unlawful,  who  may  suppress,  and  how,  497  note. 
Assets;  (See  Husband  and  Wife;)  what  crops  must  be  taken  by  admin- 
istrator or  executor,  1 8. 
goods  and  chattels  of  estate  can  be  taken  on  execution  against  admin- 
istrator or  executor,  146;  but  not  for  private  debt  of  executor  or 
administrator,  146. 
Assignee,  is  the  person  to  whom  an  assignment  is  made,  210  note  1 ;  (See 
Assigntnent  of  claim  not  negotiable  —  Bill  of  exchange — Promis- 
sory note  —  Negotiable  bomi.) 
Assignment  of  a  Claim  not  Negotiable;  assignee  cannot  sue  on,  in  his  own 
name,  210,11. 


Index.]  ATT  533 

Assignment  of  a  Claim  not  Negotiable — continued. 

how  the  transfer  may  be  made,  211. 

indorsement  of,  without  delivery,  gives  no  right,  211. 

the  transfer  of  itself  authorizes  the  assignee  to  sue  in  name  of  as- 
signor, 211. 

how  the  parties  to  the  suit  are  named  on  the  docket,  214. 

rights  of  the  assignee  against  the  debtor;  in  general  stands  in  the 
shoes  of  the  assignor,  212,13;  not  affected  by  what  the  assignor 
may  do  or  say  after  the  assignment,  212;  not  affected  by  payment, 
&c.,  by  the  debtor  to  the  assignor,  after  notice  of  the  assign- 
ment, 212. 

rights  of  the  debtor  against  the  assignee,  215.  212. 

rights  of  the  assignee  against  the  assignor ;  for  fraudulent  misrepre- 
sentation in  regard  to  the  claim,  212;  or  where  the  claim  is  deliv- 
ered without  indorseniont,  in  exchange  for  property,  or  in  pay- 
ment of,  or  to  secure,  a  prior  debt,  213.  413;  or  whei-e  assignor 
guaranties  the  payment,  213,14.  409;  or  where  assignor  signs 
his  name  in  blank  on  the  claim,  213,14.  409;  or  where  the  claim 
is  a  forgery,  214;  at  what  time  demand  upon  the  debtor,  and  notice 
of  non-payment  to  the  assignor,  is  necessary  to  make  the  assignor 
liable  to  the  assignee,  409.  214;  assignee  need  not  sue  the  debtor 
before  proceeding  against  the  assignor,  214. 

who  liable  for  costs,  216. 
Assignor,  is  the  person  who  makes  the  assignment,  210  note  1. 
Assigns;  this  word,  or  "bearer,"  or  "order,"  nece.ssary  in  a  note,  bond,  or 
bill,  to  make  it  negotiable,  386;  when  used  in  other  instruments,  it 
does  not  render  them  negotiable,  386. 

when  a  negotiable  instrument  is  payable  to  A  or  his  assigns,  it  must 
be  indorsed  by  A  before  it  can  be  transferred,  389;  when  so  paya- 
ble, and  indorsed  in  blank  by  A,  it  may  be  afterwards  transferred 
by  mere  delivery,  389.  392.' 
Associate  Judge,  (Sec  Judge.) 

Assumpsit,  Action  of,  in  what  cases  it  may  be  brought,  9. 
Atheist,  not  a  competent  v.itncf^s,  58. 
Attachment  against  Debtors;  when  and  in  what  cases  it  may  issue,  216,17. 

nature  of  the  affidavit  to  procure  attachment,  218;  form  thereof,  230. 

writ  of ,  any  Justice  of  county  may  issue,  5;  command  of,  and  how 
indorsed,  219;  form  of,  and  of  the  indorsement,  230,  231;  how 
served  and  returned  when  no  one  prefers  a  claim  to  the  property 
attached,  219  to  221;  when  to  be  returned,  227;  form  of  returns 
to,  232. 

adverliscment  of  issuing  of  when,  by  whom,  and  how  to  be  given, 
219;  proof  of  required,  219;  in  default  of  proof  of,  plaintiff  to  bo 
nonsuited,  227,8;  form  of  advertisement,  231. 

levy  by,  how  made,  and  in  whose  presence,  219;  form  of  oath  to  ap- 
praisers, 219;  how  to  proceed  when  property  is  pledged,  or  there 
is  a  lien  on  it,  220,  and  note  2. 

property  taken  on,  must  be  appraised  and  inventoried,  and  how,  219; 
forin  of  inventory  and  appraisement  232;  must  be  taken  care  of 
by  Conslable,  unless  bond  is  given,  220;  form  of  bond  for  rede- 
livery of  the  j)roperty,  233;  how  long  it  must  be  kept  before  sale, 
220;  when  and  how  live  stock  and  perishable  property  to  be  sold, 
220;  when  and  how  other  property  to  be  sold,  with  form  of  writ, 
228,9;  who  to  beaa*  loss  if  property  perishes  by  unavoidable  acci- 


534  ATT  [Index. 

(Attachment  against  Debtors — conlimied.) 

dent,  220;  how  property  claimed,  or  its  proceeds,  must  be  disposed 
of,  222  to  224;  when  it  should  be  delivered  by  the  Constable  to  the 
Sbcriti;  228. 

garnUhce  in,  who  is  so  called,  218;  nature  of  affidavit  against,  and 
when  a  warrant  may  issue  against,  218;  form  of  such  warrant, 
231;  copy  of  afHdavit  against,  to  be  delivered  to  Constable,  219; 
form  of  notice  to  be  given  by  Constable  to  garnishee,  221  note  1; 
how  the  writ,  &c.  should  be  served  on  garnisbec,  220,1 ;  eilcct  of 
such  service  on  claims  and  property  in-hands  of  garnishee,  226,7; 
how  warrant  against,  is  served  221 ;  proceedings  before  Justice  on 
the  warrant,  with  forms  225  to  227;  proceedings  against  garnishee 
after  service  of  writ,  when  a  warrant  is  not  issued  against  him, 
226,7;  examination  of,  to  be  reduced  to  writing,  225,6;  if  he  does 
not  appear  attachment  may  issue  against  him,  226;  how  to  proceed 
against  him  on  a  debt  that  is  not  due,  227;  when  plaintifl'may  dis- 
continue suit  against  him,  225;  suit  against  him  continued  until 
attachment  suit  determined,  and  then  tried,  226;  when  he  is  liable 
for  costs,  and  when  not,  226,7. 

return  to  writ,  forms  of,  232. 

claimant  of  proj^crty  taken  on;  when,  and  how,  and  to  whom,  he 
must  give  notice,  221 ;  form  of  notice  thereof,  to  be  given  by  Jus- 
tice to  Constable,  221  note  4;  how  the  notice  served,  and  return 
thereof,  221,2,  note  1;  form  of  docket  entry  and  judgment  on 
trial  of  right  of  claimant,  236.  222  notes  3,  4;  how  and  against 
whom  the  costs  to  be  taxed,  222;  appeal  may  be  taken,  by  whom, 
and  when,  222.  224;  certiorari  may  be  allowed,  by  whom,  and 
when,  ih. 

effect  of  judgment  in  favor  of  claimant,  if  no  appeal  or  certiorari,  223 ; 
order  for  restitution  of  property  to  him,  when  to  be  given — must 
be  obeyed,  223;  what  to  bo  done  with  the  property  or  its  proceeds 
if  certiorari  or  appeal  is  1aken  in  such  case,  223;  requisites  and 
form  of  bond  in  such  case,  223  n.  2;  bond  for  redelivery  of  proper- 
ty to  be  filed  with  justice,  224;  form  of  scire  facias  &c.  on  such 
bond,  224  note  1. 

what  to  be  done  v/ith  the  propoi  ty  or  its  proceeds  if  certiorari  or  ap- 
peal is  taken  from  judgment  against  claimant,  224. 
2)rocecdings  on  the  torit  of,  offer  its  i'eturn;  plaintifF  must  prove  ad- 
vertisement of  issuing,  or  bo  nonsuited,  227,8;  if  no  property,  nor 
garnishee,  how  to  proceed,  227;  if  v/nt  is  returned  satisfied,  what 
to  be  done,  221  ;  when  trial  and  judgment  may  be  had  on  claims 
against  the  defendant,  227;  or  by  other  creditors,  when  plaintiff 
fails  or  dismisses  his  suit.  228;  how  to  proceed  if  the  claim  of  a 
creditor  exceeds  $100,  228;  what  is- to  be  done  if  a  creditor  sues 
out  another  attachment  from  the  Court  of  Common  Pleas,  228; 
when  execution  to  issue,  and  the  form  thereof,  ib.  n.  2;  sale  to  be 
made  as  in  other  cases,  229;  (See  Execution;)  how  the  money 
made  to  be  apportioned  among  creditors,  229;  directions  how  to 
calculate  the  jier  centagc,  229  note  2. 
fees  and  costs,  in  tbe  proceeding  against  garnisbec,  how  adjusted  and 
paid,  226,7;  in  the  jjroceeding  by  claimant  of  property,  222;  how 
the  other  costs  are  paid,  229;  what  tbe  justice  may  allow  the  con- 
stable and  appraisers,  329. 

appeal  and  certiorari;  in  proceedings  by  a  claimant,  222,3 ;  in  other 
cases,  329. 


Iiidex.^  B  A I  535 

Attachment  against  Debtors — continued. 

Docket  entries  in;  form  of,  when  there  is  no  garnishee  233,4;  when 
proceedings  are  had  against  garnishee,  234,5;  when   there  is  a 
claimant,  236. 
Attachment  for  Witness,  (See  Witness.) 

Attesting    Witness;   no   one  but  subscribing  witness  can  be  admitted  to 
prove  the  execution  of  the  instrument,  83;  exceptions  to  this  rule, 
83,4. 
there  must  be  two  to  a  deed  &c.  and  to  a  will,  501.  518. 
attorney  at  law  must  attest  a  power  of  attorney  to  confess  judgment 
made  by  a  person  in  custody,  285. 
Attorney,  (See  Agent  —  Attorney  at  law  —  Warrant  of  Attorney — Poioer 

of  attorney.) 
Attorney  at  Law,  when  privileged  from  arrest,  29.  141. 

cannot  testify  as  to  professional  communications,  75;  but  must  as  to 

other  communications,  75. 
must  sign  power  of  attorney  to  confess  judgment,  when  made  by  a 

person  in  custody,  285. 
tender  to,  on  account  of  his  client,  good,  456. 
Attorney,  Warrant  of,  (See  Warrant  of  Attorney.) 

Auction;  the  effect  of  combination  among  purchasers  to  prevent  competi- 
tion, 155. 
at  what  time  bidder  may  Avithdraw  his  bid,  155. 
when  auctioneer  may  set  up  property  a  second  time,  and  make  first 
bidder  pay  the  difference  in  the  two  bids,  155. 
Authentication  of  Copies  of  Records  and  Transcripts;  how  witness  may 
prove  that  a  paper  is  a  copy  of  a  record,  79. 
what  copies  are  proved,  and  how,  by  the  certificate  of  an  officer.^ 

79,80. 
what  other  proof  than  such  certificate  is  required,  to  admit  the  copy 

in  evidence,  80. 
form  of  certificate  of  a  justice  to  authenticate  his  transcript,  179. 
Award,  what,  202. 

form  of,  under  common  arbitration  bond,  508;  when  suit  before  jus- 
tice is  submitted  to  arbitration,  203  note  4;  proceedings  of  justice 
on  such  award,  203;  how  set  aside  by  him,  204;  appeal  from,  how 
taken,  204,5. 
When  void;  for  not  specifying  with  certainty  what  is  to  be  done,  207; 
or  on  account  of  arbitrators  not  deciding  upon  all  matters  submit- 
ted, 206 ;  or  being  made  at  wrong  time  or  place,  or  after  the  decease 
of  a  party,  207;  or  being  made  after  the  submission  was  revoked, 
207;  or  relating  to  the  possession  of,  or  title  to  real  estate,  208;  or 
not  being  made  in  pursuance  of  the  submission,  200;  or  arbitrators. 
awarding  upon  matters  not  submitted  to  them,  208. 
when  void  in  part,  and  good  in  part,  207,8. 
in  suit  on,  what  defence  the  defendant  may  set  up,  209. 
the  effect  of  a  valid  award  as  a  defence  to  an  action  brought  upon  the 

matters  submitted,  208,9. 
an  award  cannot  be  made  a  rule  of  a  justice's  court,  204. 
Baggage  of  Stage  Passengers;  must  be  taken  care  of  by  stage  proprietors 
and  their  servants,  256. 
when  proprietors  liable  for  loss  of,  257,8. 
Bail;  (as  to  other  sureties,  see  Sureties;)  for  costs  when  required,  and  forn> 
of  recognizance,  27  note  4;  action  of  debt  may  be  brought  there- 


53G  BAN  [Jude.r. 

(Bail  —  cant  inued.) 

on,  27  note  4;  in  forcible  entry  and  (ic.iitiiicr,  Uirm  ol'ljuud,  and  w  hen 
required,  309.  302. 
for  appearance  of  defendant  in  civil  cases  on  an  adjournnicnt,  form 
of  recognizance,  51;  for  what  such  bail  liable,  and  when  and  how 
sued,  52. 
by  garnishee  in  attachment,  directions  for  form  of  their  recognizance, 
"  225  note  4. 

for  appearance  of  defendant  charged  with  bastardy,  form  ol'  the  re- 
cognizance, 267  note  1. 

for  stay  of  execution,  when  and  in  what  cases  taken,  and  form  of  re- 
cognizance, 131.  133;  the  bail  in  such  case  may  be  proceeded 
against,  if  in  the  county,  5;  how  proceeded  against,  with  forms  of 
process  and  docket  entries,  134  to  137;  their  remedy  against  the 
judgment  debtor,  134,5.  138,9;  what  expenses  they  may  recover 
from  the  principal,  331;  when  such  bail  may  recover  from  the 
surety  of  the  judgment  debtor,  332. 

for  an  appeal,  when  to  be  entered,  and  form  of  recognizance,  124;  in 
what  cases  the  bail  liable,  126;  how  proceeded  against,  with  forms 
of  process  and  docket  entries,  126  to  129. 

general  remedy  of  bail  on  account  of  their  liability,  330  to  332;  (See 
Sureties.) 

In  criminal  cases:  form  of  recognizance  when  case  is  adjourned 
over,  484;  forfeiture  thereof,  485.  489;  form  of  recognizance  of 
the  defendant,  and  the  witnesses,  on  final  examination,  487;  to  keep 
the  peace,  when  it  may  be  required,  495;  form  of  recognizance, 
496  note  3. 

fees  for  taking  recognizance  of  bail,  108. 
Bailee;  is  the  person  to  whom  goods  arc  hired,  210  note  1 ;  (See  Hirer  of 

Articles.) 
Bailment;  is  the  delivery  of  goods  in  trust  for  some  specific  object,  237. 

always  implied  contract  that  care  will  be  taken  of  the  goods,  237; 
express  contract,  or  orders,  dispense  with  such  implied  contract, 
237. 

what  is  common  or  ordinary  care  or  diligence,  slight  diligence,  ordi- 
nary negligence,  slight  negligence,  and  gross  neglect,  237. 

deposit  to  be  kept  without  reward,  rights  and  liabilities  of  parties  in 
such  case,  238  to  240;  (See  Deposit  of  Goods.) 

rights,  remedies  and  liabilities  of  carriers  of  goods,  248  to  255;  (See 
Carrier  of  Goods;)  of  borrower  of  goods,  241,2;  of  hirer  of  goods, 
243  to  245;  of  pawner  and  pawnee  of  goods,  242,3;  of  carrier  of 
passengers,  255  to  258;  (See  Stage  jifoprietors.) 
Bailor;  is  the  person  who  lets  goods  to  hire,  210  note  1. 
Balance  of  Account;  is  the  debt,  376;  when  statute  of  limitations  commen- 
ces operating  on,  359.  364. 
Banks;  (See  Bank  bills — Bank  check — Blank  signatures.) 

stockholders  of,  incompetent  as  witnesses  for,  60. 

suits  by,  and  against,  must  be  in  corporate  name,  264. 

how  they  must  sue  drawers,  makers  and  indorse rs  of  instruments,  ib. 

their  own  bills  must  be  received  in  payment  of  their  judgments,  t/!>. 

cannot  delay  payment  of  their  bills  by  counting  small  coins,  ib. 

of  judgment  and  execution  against,  on  their  h'\\]s,ib. 

rights  of  depositor  of  money,  and  claims  of  bank  on  a  deposit,  240. 

effect  of  loaning  at  a  greater  rate  of  interest  than  6  per  cent,  264. 


Index.]  BE  A  537 

Bank  Bills;  may  be  levied  on  and  applied  to  an  execution,  147. 

remedy  of  party  who  receives  counterfeit  bills  or  bills  of  a  broken 
bank,  378  note  1. 

rights  of  parties  when  a  bank  bill  has  been  lost,  stolen  &c.  420,  when 
half  of  a  bill  has  been  lost  by  mail,  419. 

are  a  legal  tender  if  not  objected  to  at  the  time  of  tender,  457. 
Bank  Check;  description  of,  and  parties  described,  419. 

at  what  time  it  must  be  presented  to  make  the  drawer  liable,  ib. 

if  the  drawer  had  no  reason  to  expect  the  check  would  be  paid,  it  dis- 
penses with  notice  to  him  of  its  nonpayment,  ib. 

liability  of  person  who  transfers  a  check  by  delivery  merely,  ib. 

if  bank  refuse  to  pay,  the  holder  of  the  check  cannot  sue  it,  420. 
when  the  drawer  may  in  such  case  sue  the  bank,  ib. 

when  lost,  stolen,  &c.  a  subsequent  bona  fide  holder  is  entitled  to  it 
against  the  true  owner,  ib. 

who  to  sustain  loss  when  bank  pays  a  forged  &c.  check,  420,1. 
Bans;  (Sec  Marriage.) 

Bargain;  for  sale  of  property,  is  complete  and  binding  when  the  terms  arc 
agreed  upon  on  both  sides,  422,3.     (See  Sales.) 

the  difference  between  an  offer  to  promise  and  a  promise,  326. 

Barter:  (See  Exchange.) 

Bastards;  proceedings  against  father  by  mother  of,  with  forms,  265  to  269; 

suit  should  be  brought  in  the  name  of  the  woman  as  plaintiff,  268  n. 
the  complaint  of  the  woman  to  be  under  oath  and  reduced  to  writing, 

265;  form  thereof,  ib.  note  1. 
form  of  warrant  against  the  father,  ib.  n.  2;  to  be  served  and  return- 
ed as  a  capias,  ib. 
examination  of  the  woman,  how  conducted  266;  form  of  oath  to,  ib. 

n.  1 ;  her  testimony  to  be  reduced  to  writing,  form  thereof,  ib.  n.  2; 

not  to  be  examined  if  incompetent  as  a  witness  in  other  cases,  ib. 

note  1. 
compromise  how  to  be  made,  ib.;  entry  of  on  docket,  269. 
if  not  compromised  defendant  to  be  recognized  or  committed  to  jail, 

267;  form  of  recognizance  and  mittimus,  ib.  note  2. 
when  overseers  of  the  poor  may  proceed  against  the  putative  father, 

268;  form  of  bond  to  them,  and  when  taken,  266  note  3. 
form  of  docket  entries,  268,9. 
father  has  no  right  to  the  custody  of  the  child,  268. 
county  not  liable  for  fees  of  the  prosecution,  112. 
prosecuting  attorney  not  bound  to  attend  to  such  cases,  268  note  1. 

Battery;  civil  actions  for,  cannot  be  brought  before  a  justice,  8. 
what  amounts  to,  493. 

what  is  a  sufficient  excuse  or  justification  for,  493,4. 
in  what  cases  a  justice  may  fine  for,  494,5  note  1. 
within  what  time  the  prosecution  must  be  commenced,  494. 
form  of  affidavit,  and  warrant  thereon,  479,80;  service  of  warrant, 

482,.3;  adjournment  of  trial,  with  proceedings  thereon,  and  on  the 

trial,  484.  487;  docket  entries,  489. 

Bearer;  the  word  bearer,  order,  or  assigns,  necessary  in  a  negoliablc  in- 
strument, 386;  when  used  in  other  instruments,  they  do  not  make 
them  negotiable,  387;  if  a  negotiable  instrument  is  payable  to  A  or 
bearer,  or  to  bearer  without  a  name,  or  to  a  fictitious  person,  it  may 
be  transferred  by  dfdivery,  391,2;  so  when  indorsed  in  blank,  it  is 
the  same  as  if  made  payable  to  bearer,  391.  393. 
69 


538  B 1 1,  [Index. 

Bearer — continued. 

holder  may  sue  in  his  own  name  on  a  negotiable  instrument  indorsed 

in  blank,  though  he  is  a  mere  agent,  ;393. 
of  a  lost  or  stolen  negotiable  instrument,  his  rights,  416  to  419. 
Beasts,  (Sec  An'unals  —  S/rai/.s.) 
Behaviour,  Surety  lor  good;  when  recognizance  to  keep  the  peace,  tSi:c., 

may  be  required,  and  proceedings  in  such  case,  494  to  498. 
Betting;  wager  cannot  be  recovered,  288.     (See  Stat,  pages  426,7.) 
Bidder  at  Sale;  may  withdraw  his  bid  before  article  is  struck  oil',  155. 
how  liable,  ib. 

eilect  of  combination  among  bidders  to  prevent  competition,  ?,/><. 
Bill  of  Costs;  (See  Fees  and  Costs;)  particular  items  must  be  made  out 
and  signed  by  an  officer  on  demand,  111;  consequences  of  neglect 
in  such  case,  ih. 
Bill  of  Exceptions;  98  to  102. 
Bill  of  Exchange;  what  is,  and  form  thereof,  381.  512. 

when  the  bill  must  be  tiled  with  the  justice,  and  indorsed  and  return- 
ed by  him  after  judgment,  40;  when  appeal  taken  must  be  liled  in 
court,  125. 
defendant's  signature  must  be  proved,  if  he  files  affidavit  denying  it, 
82;  form  of  affidavit,  entry  on  the  docket,  &c.,  in  such  cases,  81,2. 
bank  must  sue  drawers  and  indorsers  jointly,  or  pay  costs,  264. 
made  by  infant,  void,  347. 

interest  on,  rate  of,  and  when  to  commence,  351,2.     (See  Interest.) 
within  what  time  the  suit  to  be  commenced  on,  358.     (See  Limitation 

of  Actions.) 
parties  thereto  described,  381,2;  may  join  in  one  suit  different  claims 

against  the  defendant,  13. 
general  nature  of,  illustrated,  382  note  1. 

requisites  of,  as  to  date,  385;  good,  though  made  on  Sunday,  ib. 
to  iohom  jiaycMe:  may  be  to  bearer  only,  ib.;  when  to  a  fictitious 
person,  ib.;  when  name  of  payee  is  blank,  ib.;  when  a  mistake  is 
made  in  the  name  of  the  payee,  386. 
the  words  '  order,' '  bearer,'  or  '  assigns,'  or  '  to  the  order  of,'  386. 
in  what  it  must  be  payable,  387. 

when  payable:  must  be  payable  at  some  period,  or  upon  some  condi- 
tion that  must  happen,  387;  if  no  time  mentioned,  is  payable  im- 
mediately, 388;  if  made  payable  after  date,  but  has  no  date,  ib.; 
time  of  payment  cannot  be  varied  by  proof  of  mistake,  or  a  dif- 
ferent intention  from  that  expressed  in  the  instrument,  ib.;  when 
due  if  payable  certain  days  after  date  or  on  demand,  ib.;  when  due 
if  payable  certain  time  after  sight,  403;  (See  Days  of  Grace  — 
Time.) 
the  words  'for  value  received'  not  necessary,  388. 
drawer  of:  is  the  one  who  makes  or  draws  the  bill,  381;  is  liable  if 
bill  is  not  paid  on  due  demand  of  drawee,  and  he  has  notice  there 
of,  395;  when  liable  to  the  drawee,  ib.;  is  liable  before  bill  is  due 
if  it  is  not  accepted  by  drawee,  396;  when  acceptor  liable  to  him, 
397,8. 
acceptance  of,  by  the  drawee:  is  a  promise  to  pay  the  bill  when  due,  396; 
what  amounts  to,  ib.;  may  be  by  promise  to  accept  before  or  after 
the  bill  is  drawn,  395,6;  conditional  or  limited  acceptance,  396; 
when  drawee  refuses  to  accept,  notice  thereof  to  be  given  to  the 
drawer  and  indorsers,  to  render  them  liable,  397;  striking  out  ac- 
ceptance by  mistake,  its  efTect,  393. 


Index.]  BiL  539 

Bill  of  Exchange  —  C07i1inned. 

presentment  for  acceptance  to  the  drawee:  at  what  time  to  be  made  on 
bill  payable  a  certain  time  after  sight  or  at  sight,  395.  401 ;  conse- 
quences of  neglect  or  delay  in  such  case,  396;  may  be  made  before 
bill  is  due,  395. 

if  presented  before  it  is  due  and  acceptance  is  refused,  notice  there- 
of must  be  given  to  the  drawer  and  indorsers,  to  render  them  lia- 
ble, 396,7. 
drawee  of :  is  the  one  upon  whom  the  bill  is  drawn,  381;  not  liable 
unless  he  accepts  or  promised  to  accept  or  pay  the  bill,  397;  is  cal- 
led the  acceptor  after  he  accepts  the  bill,  396. 

acceptor  of  hill:  the  drawee  is  so  called  after  he  accepts  or  promises 
to  pay  the  bill,  396;  is  liable  the  same  as  the  maker  of  a  note,  397; 
no  demand  on  him  necessary  unless  the  bill  is  payable  at  sight,  or 
a  specified  time  after  sight,  ih.;  not  discharged  by  a  delay  of  de- 
mand or  notice  of  non-payment,  ib.;  is,  liable  to  drawer  and  other 
parties,  but  not  for  their  costs,  398;  is  liable  though  the  bill  be  forg- 
ed, 418;  when  acceptor  liable  to  an  innocent  holder  of  a  bill  who 
received  it  from  a  thief,  &c.  ih. 

who  may  transfer  or  indorse,  390,1. 

how  transferred:  when  by  delivery  only,  and  when  the  bill  must  be  in- 
dorsed, 393.  395,6;  when  the  payee  is  a  fictitious  person,  389;  can- 
not be  transferred  for  only  part  of  the  amount  due  on  it,  ih. 

indorsemerxtof:  who  to  make,  390,1.  36;  form  of,  391,2;  form  of,  by 
an  agent,  392;  no  particular  form  for,  required,  391. 
in  blank,  how  made,  and  its  effect,  392,3;  may  be  filled  up  by  the 
holder  so  as  to  make  it  payable  to  any  one,  393;  may  be  stricken 
out  by  the  holder  of  the  bill,  ih. 

in  full,  what,  its  legal  eflect,  and  the  form  thereof,  ih.. 

when  so  made,  what  will  divest  the  indorsee  of  his  legal  title  to  the 
bill,  .392,3.  418. 
may  be  canceled  by  the  holder  of  the  bill,  393. 

so  as  to  prevent  its  negotiability,  how  and  by  whom  made,  393,4; 
waving  demand  and  notice  of  nonpayment,  how  made,  394;  with- 
out recourse  on  the  indorser,  form  of,  ih.;  striking  it  out  by  mis- 
take will  not  discharge  the  indorser,  393. 

indorser  of:  is  the  person  who  transfers  a  bill  by  indorsement,  382; 
conditions  upon  which  he  is  liable,  ih.;  not  liable  unless  due  de- 
mand is  made  of  drawee,  and  he  has  notice  of  the  non-acceptance 
or  non-payment  by  the  drawee,  398,9;  only  liable  to  the  person  to 
whom  lie  indorses  and  to  those  to  whom  the  bill  is  afterwards 
transferred,  ib.;  may  take  up  the  bill  by  paying  it  and  then  su- 
ing all  previous  parties,  398;  need  not  in  such  action  produce  re- 
ceipt or  reindorscment,  400;  when  an  indorser  is  paid  by  an  in- 
dorser, all  who  indorsed  after  the  party  did  who  is  paid,  are  dis- 
charged, 399;  cannot  recover  his  costs  from  the  other  parties,  400; 
cannot  recover  from  co-indorsers  a  rateable  share  of  amount  paid, 
ih.;  exception  to  this  rule,  ih.;  who  pays  and  takes  up  the  bill 
may  again  negotiate  it,  ih.;  if  he  pays  the  bill  is  entitled  to  its 
possession,  ti.;  always  warrants  that  the  bill  is  not  forged,  418: 
is  discharged  from  liability  by  the  holder  delaying  to  make  demand 
of  payment  of  the  drawee  or  acceptor,  403;  is  discharged  by 
not  receiving  due  notice  of  such  demand  and  non-payment,  398. 
404. 


540  B 1 1'  [Index. 

Bill  of  Exchange  —  continued. 

transferrer  of,  by  mere  delivery  without  indorsement,  when  liable, 
400,1,  must  have  notice  of  the  dciuaiid  upon  the  drawee  and  non- 
payment, 409. 
holder  of:  is  the  payee,  indorsee,  or  other  party  who  for  the  time 
being  owns  and  holds  tlie  bill,  382;  n)ay  sue  all  the  parties  at  once 
in  separate  suits,  399,400;  how  he  should  proceed  to  save  his 
costs,  400. 
demand  of  payment  of  drawee:  not  necessary  to  render  acceptor  of, 
liable,  397;  exception  to  this  rule,  ih.;  not  necessary  if  the  bill  has 
been  refused  acceptance,  409;  is  necessary  to  render  drawer  and 
indorse rs  liable,  396,7.  404.     (See  Accommodation  Paper.) 

at  what  time  demand  to  he  made:  when  bill  is  payable  on  demand, 
or  negotiated  after  it  is  due,  or  no  time  of  payment  is  men- 
tioned in  it,  401;  when  the  time  of  payment  is  mentioned  in 
the  instrument,  402,3.  407;  must  be  made  during  the  usual 
business  hours,  403. 
how  demand  to  he  made:  _i\\G  bill  should  be  produced,  404;  may 
be  made  by  any  person  who  has  possession  of  the  bill,  ih.; 
when  the  drawee  or  acceptor  has  gone  from  home,  ih.;  when 
he  has  changed  his  residence,  or  absconded,  or  gone  out  of  the 
State,  ih.;  when  the  bill  is  expressly  made  payable  at  a  par- 
ticular place,  ih.; 
demand  of  paxjment  need  not  he  inade  when  drawee  has  no  effects  of 
drawer  in  his  hands,  407;  exception  to  this  rule,  407,8;  (See  Ac- 
commodation Paper;)  when  party  promises  to  pay  who  was  dis- 
charged for  want  of  demand,  408;  when  the  drawee  or  acceptor 
has  absconded,  or  moved  out  of  the  State,  or  cannot  on  due  inquiry 
be  found,  ih.;  when  the  bill  is  forged  or  given  for  a  gaming  debt, 
409. 
when  delay  in  making  demand  will  be  excused,  409.  408. 

Notice  of  non-payment  or  non-acceptance  must  be  given  to  drawer  and 
indorsers,  or  they  will  be  discharged,  398.  404;  transferrer  of  bill 
by  pnere  delivery  without  indorsement,  is  discharged  unless  he  has 
notice,  409;  when  it  should  be  given,  406;  how  it  should  be  given, 
405;  what  the  notice  should  contain,  and  the  form  thereof,  ib.;  to 
whom  and  by  whom  it  should  be  given,  407 ;  if  notice  of  non- 
acceptance  has  been  given  no  notice  of  non-payment  is  necessary, 
409;  in  what  cases  the  notice  need  not  be  given,  407,8;  (See  Ac- 
commodation paper;)  in  what  cases  delay  in  giving  the  notice  will 
be  excused,  407,8. 

effect  upon  liability  of  parties  when  bill  is  negotiated  after  it  is  due, 
411,12;  when  demand  should  be  made  upon  the  drawee  or  accep- 
tor in  such  case,  400.  411. 

blank  bill  with  signatures,  how  it  may  be  filled  up,  389;  when  good 
though  not  filled  up  according  to  agreement,  ih. 

if  bill  payable  on  demand,  when  due,  388;  when  interest  commences 
on,  in  such  case,  351 ;  when  demand  to  be  made  to  charge  indors- 
ers in  such  case,  401. 

if  payable  at  a  particular  place,  when  demand  necessary  at  the  place, 
386;  is  necessary  at  the  place,  to  charge  the  drawer  and  indorsers, 
387.  404. 

statute  in  relation  to  bail  and  sureties  not  applicable  to  indorser  of 
bills,  416  J  exception  to  this  rule,  ib. 


Index.]  BOA  54 1 

Bill  of  Exchange — continued. 

when  and  what  parties  discharged  by  one  giving  time  to,  or  releasing 
or  discharging  another,  414,15. 

the  rights  and  obligations  of  the  parties,  &c.,  to  a  bill  that  is  stolen, 
lost  or  destroyed.  416. 

how  demand  to  be  made  on  lost  bill  or  note,  404;  rights  of  innocent 
holder  of  such  bill,  417,18.     {See  Bank  Check.) 

rights  and  liabilities  of  parties  who  draw,  accept  or  indorse  a  bill  for 
the  mere  accommodation  and  benefit  of  another,  414.  408.  400;  the 
principal  debtor  is  in  such  case  liable  for  the  costs,  331.  400. 

defence  to  an  action  on:  when  suit  is  by  the  drawer  against  the  ac- 
ceptor, 410;  or  by  the  payee  against  the  drawer  ih.;  or  by  the  in- 
dorsee against  /«'y  indorser,  iZ*. :  or  by  an  indorsee  against  the  ac- 
ceptor, 410  to  412;  or  by  an  indorsee  against  an  intermediate  in- 
dorser,  ih.  or  on  accommodation  paper,  4 1 4. 

days  of  grace,  what  they  arc,  402;  wdien  allowed,  402,3. 
Bill  of  Lading,  described,  250,1. 

what  damages  are  generally  excepted  in  bills  of  lading  on  Lake  Erie 
and  the  Ohio  river,  251. 

what  proof  may  be  received  to  alter  its  terms,  &c.  250. 

what  accidents  are  included  in  '  perils  or  dangers  of  the  sea,'  251. 
Bill  of  Particulars;  what  it  should  contain,  38,9. 

of  the  plainliff:  when  it  must  be  filed,  38;  the  filing  should  be  noted 
on  the  docket,  ib.i  if  not  filed  he  should  be  nonsuited,  39.  evidence 
by  plaintirt' must  be  confined  to  his  bill,  38;  eflect  of  mistake  in, 
38,9. 

of  the  defendant:  when  it  should  be  filed,  38;  what  it  should  contain, 
ib.;  consequences  of  not  filing,  40;  effect  of  mistake  in,  38;  what 
defence  he  may  make  besides  the  matter  in  his  bill,  38.  40. 

payment  of  fees  of  an  officer  may  be  refused  until  particular  items  are 
on  request  made  out  and  signed,  111. 
Bill  of  Sale;  form  of,  512. 

form  of,  by  way  of  mortgage,  ib. 

form  of,  executed  by  constable  on  a  sale  of  a  leasehold  estate,  161. 

what  is  an  absolute  bill  of  sale,  3 1 8. 

by  debtors  to  defraud  creditors,  318  to  320. 
Birth ;  what  evidence  may  be  received  to  show  the  time  a  person  was  born, 

70. 
Blacks  and  Mulattoes;  when  competent  and  when  incompetent  as  witness- 
es, 58. 

if  a  man  is  nearer  white  than  mulatto,  is  deemed  white,  58. 
Blacksmiths;  (See  Mechanics — Lien.) 

Blank  indorsement;  made,  not  to  transfer  the  instrument,  but  as  surety, 
how  the  iiidorser  is  liable,  325.  327. 
liability  of  the  assignor  of  a  claim  not  negotiable,  writing  his  name 
on  it  when  he  delivers  it,  213,14. 

(See  also,  Blank  Signature — Bill  of  Excliange  —  Promissory  Note 
— Negotiable  Bond.) 

Blank  Signature;  delivered  to  be  filled  up  as  a  note,  bond,  or  bill  of  ex- 
change, is  binding,  389. 
liability  of  parties  when  it  is  filled  up  differently  from  the  agreement, 
389  and  note   1.     (See  Blank  Indorsement — Bill  of  Exchange — 
Promissory  Note — Negotiable  Bond.) 

Boats;  (Sec  Canal  Boats — Vessels — Drifts — Carrie?'  of  Goods.) 


542  B  o  R  [Index. 

Boats  on  Canal,  (Sec  Carrier  of  Goods'^— Drifts;)  master  6ic.  liable   for 
all  damages  to  goods  arising  from  a  violation  of  the  legislative  reg- 
ulations relating  to  the  canal,  258. 
who  responsible  for  damages  arising  from  collision  of  boats,  258,9. 

Bond,  (See  also  Recognizance — Bail — Sureties;)  and  as  to  common  ne- 
gotiable bond  for  the  payment  of  money,  (Sec  Negotiable  Bond;) 
when  balance  due  on,  is  less  than  $100,  though  penalty  more,  may 
be  sued  on  before  a  justice,  6.  384  note  2;  the  action  should  be  debt, 
and  not  covenant,  11. 

conditioned  for  the  payment  of  money  must,  when  sued  on,  be  filed 
with  the  justice  and  indorsed  by  him,  and  on  appeal  filed  with  the 
clerk,  40.' 125. 

nature  and  effect  of  penalty  in,  and  what  part  of  it  may  be  recovered, 
384  note  2. 

of  the  proof  of  the  execution  of,  on  the  trial,  and  when  required,  81 
to  84. 

docket  entries  in  suit  on,  119,20. 

cannot  be  taken  on  execution  as  goods  and  chattels,  148;  may  be  taken 
on  an  attachment,  219. 

a  partner  cannot  bind  the  firm  by  a  sealed  instrument,  372  j  exception 
to  this  rule,  ih. 

executed  by  infant  is  void,  347. 

belonging  to  the  wife  before  the  marriage,  to  whom  it  goes  on  her 
decease,  337.  344;  or  on  the  decease  of  the  husband,  zi. 

owing  by  the  wife  before  the  marriage,  how  to  sue  thereon  after  the 
marriage,  344;  or  after  decease  of  the  husband,  345;  or  after  the 
decease  of  the  wife,  ih. 

rights  and  obligations  of  parties,  and  the  assignor  and  assignee,  when 
a  bond  not  negotiable  is  transferred,  210  to  216.  409.  (See  Assign- 
ment of  Claims  not  Negotiahle.) 

form  of  a  common  negotiable  bojid  for  the  payment  of  money,  384. 
(See  Negotiable  Bond.) 

form  of  common  bond  with  a  condition,  510. 

form  of  official  bond  of  a  justice  of  the  peace,  4  note  3 ;  what  is  a 
breach  of  its  conditions  for  which  his  sureties  are  liable,  165;  can- 
not be  sued  before  a  justice,  iZ>. 

form  of  official  bond  of  a  constable,  269  note  1 ;  how  sued  and  pro- 
ceedings thereon,  275  to  277. 

form  of,  to  indemnify  the  constable  for  redelivery  of  property  taken 
on  execution,  151  note  4;  so,  for  the  redelivery  of  property  taken 
on  attachment,  233;  so,  for  selling  goods  on  execution  which  have 
been  ordered  to  be  restored,  175  note  3;  so,  by  the  claimant  of  goods 
to  the  debtor  in  attachment  on  an  appeal,  and  how  prosecuted,  223 
note  2.  224  note  1 :  so,  by  f^itiier  of  a  bastard  to  the  overseers  of 
the  poor,  266  note  3:  so,  for  costs  in  an  action  of  forcible  entry 
and  detainer,  309,10:  (for  other  cases  in  regard  to  costs,  see  Bail:) 
so,  by  taker  of  stray,  448  note  1;  so,  by  purchaser  of  stray,  451 
note  2. 

Book  Account,  (See  Account  and  Account  Book:)  the  book  cannot  be  taken 
on  execution,  147. 

Borrower  of  Goods:  his  rights,  remedies,  and  liabilities,  241,2. 

when  the  rights  of  the  lender  must  appear  by  writing  and  be  record- 
ed, 245. 


Index,']  CAR  543 

Breach  of  the  Peace:  when  prosecution  to  be  commenced  for  provoking 
or  attempting  to  provoke  another  to  a  breach  of  the  peace  and  pro- 
ceedings in  such  case,  494. 

proceedings  requiring  a  person  to  enter  into  a  recognizance  to  keep 
the  peace^  495. 
Breaking  open  Doors :  when  it  may  be  done  to  serve  a  capias  in  a  civil 
suit,  35. 

to  seize  goods  on  an  execution,  148,9. 

to  take  the  body  on  an  execution,  167. 

to  take  a  person  accused  of  crime,  and  without  a  warrant,  479. 

to  take  a  person  on  a  common  State  warrant,  482,3. 

to  execute  a  search  warrant,  482. 

Bribery:  promise  to  give  money  or  property  as  a  bribe  is  void,  289:  mo- 
ney or  property  delivered  as  a  bribe  cannot  be  recovered  back,  ii. 
promise  to  pay  an  officer  for  neglecting  to  perform  his  duty  is  void, 
288. 

Broker:  who  buys  notes,  &c.  at  discount,  and  without  indorsement,  cannot 
sue  the  transferree,  400:  but  such  transfer  warrants  the  instrument 
not  to  be  a  forgery,  418:  indorser  only  liable  for  the  amount  he 
received,  412  note  1.  410. 

Buildings,  Contract  for:  form  of,  514  to  517:  rights  and  liabilities  of  the 
parties  when  contract  is  changed,  partly  performed,  or  not  per- 
formed according  to  agreement,  472  to  474. 

Burden  of  Proof:  (See  Evidence.) 

Burning,  Threats  of:  proceedings  requiring  the  accused  to  enter  into  re- 
cognizance to  keep  the  peace,  495  to  499. 

Butchers:  by  a  sale  for  domestic  use,  impliedly  warrant  the  meat  to  be 
sound  and  fit  for  use,  437. 

By-Laws:  (see  Towns.) 

Calendar  Months :  when  months  mentioned  in  a  statute,  contract,  note,  &c. 

are  considered  lunar,  and  when  calendar  months,  157  n.  12.  403. 
Canal:  (see  Stat.  174  to  200.) 

Canal  Boats:  (see  Boats  on  Canals:  Stat.  174  to  200.) 

Capias  ad  respondendum:  (as  to  execution  for  goods  and  body,  see  Execu- 
tion:) what  it  is,  25. 
in  what  cases  it  may  in  general  be  issued  instead  of  a  summons,  27 

to  30. 
may  issue  instead  of  a  scire  facias  on  certain  transcripts,  179:  but  an 

affidavit  is  required  in  such  case  by  statute,  27. 
requisites"  and  common  form  of,  33. 

when,  liow  and  where  it  may  be  served,  and  what  doors  may  be  bro- 
ken open  to  make  the  service,  34  to  36. 
how  to  proceed  when  the  defendant  is  privileged  from  arrest,  167. 
irregularity  in  issuing,  does  not  excuse  a  .service  of  it,  34. 
must  not  h(i  served  if  defendant  is  sued  by  a  wrong  name,  or  if  the 

justice  has  no  jurisdiction,  ib. 
what  the  constable  may  do  with  the  defendant  after  the  arrest,  36. 

escapes  from,  after  the  arrest,  36,7.     (see  Escape — Rescue.) 
form  of  returns  to,  37. 
fees  for  issuing,  service  and  return,  107,8,9. 
Caption  of  a  deposition:  form  thereof,  90. 
Carpenter:  (see  Mer.ha.nics — Building.  Contract  for.) 


544  c  K  R  [Index. 

Carrier  of  Goods,  (Sec  Warehoti^ejnen:)  who  arc  tlcenicd  common  carriers 
and  who  are  not,  248. 

liability  of  a  private  carrier  for  injury  or  loss  of  goods,  ib. 

who  are  deemed  partners,  249. 

there  need  be  no  express  agreement  for  freight,  248. 

are  responsible  for  the  acts  of  their  agents  and  servants,  249. 

does  not  iwrform  his  duty  by  transferring  the  goods  to  another  car- 
rier to  convey,  253. 

their  duties  generally,  and  what  expenses  they  must  incur  to  preserve 
the  goods,' 249.  251. 

what  care  they  must  take  of  damaged  goods,  to  prevent  further  dam- 
age, 251. 

are  liable  for  all  losses  and  injuries  that  do  not  arise  from  the  act  of 
God,  and  public  enemies,  250:  what  arc  decnicd  the  acts  of  God, 
and  who  are  public  enemies,  t&. 

who  to  bear  loss  of  goods  where  the  boat  is  run  on  a  snag  or  rock,  a 
shallow,  the  shore,  or  into  collision  with  another  boat,  or  the  goods 
are  thrown  overboard,  251. 

consequence  of  deviating  from  the  usual  course  of  navigation,  iJ. 

when  his  risk  commences  and  terminates,  25), 2.  (See  Warehouse- 
men.) 

consequences  of  his  delivering  the  goods  to  the  wrong  person,  253. 

effect  of  notice  by  him  that  he  will  not  be  liable  for  injury  or  loss  to 
the  goods,  and  on  whom  binding,  253,4. 

how  his  lien  for  freight  may  be  destroyed,  254. 

whether  the  owner  may  set  off  against  the  amount  of  freight  the  dam- 
ages arising  from  delay  of,  or  injury  to  the  goods,  iZ'.  note  1. 

how  the  value  of  lost  goods  to  be  estimated,  255. 

cannot  affect  the  owner's  right  to  goods  by  an  unauthorized  sale,  425. 

what  is  a  bill  of  lading,  and  the  construction  the reof,^  250,1. 
Carriers  of  Travelers:  (see  Stage  Proprietors  and  Drivers.) 
Case,  action  of  trespass  on  the:  in  what  case  it  may  be  brought,  9,10. 

within  what  time  it  must   be  brought,  358,9.     (see  Limitation  of 
Actions.) 
Cattle:  (see  Strays — Animals.) 

Cause  of  Action :  cannot  sue  on  a  promise  or  contract  until  the  promise  or 
contract  is  broken,  360  note  2.     (see  Frauds.) 

what  causes  of  action  may  be  joined  in  one  suit,  13,14. 

one  entire  cause  of  action  cannot  be  divided,  104,5. 

consequences  of  bringing  separate  suits  in  such  cases,  ih. 
Cellar:  contract  for  digging  and  for  mason  work  of,  515,16,17. 
Cents:  are  not  a  legal  tender,  457. 

Certificate:  of  the  official  oath  of  justice,  form  of,  and  when  and  to  whom 
it  must  be  transmitted,  3  note  2. 

form  of,  to  authenticate  a  transcript  from  a  docket,  180. 
effect  thereof  as  an  instrument  of  evidence,  79. 

effect  of,  to  copies  of  deeds,  records,  &c.  as  instruments  of  evidence, 
79,80. 

form  of  acknowledgment  to  a  deed,  tfcc.  191. 

of  oath  to  establish  an  account  against  an  eslate,  193  note  2. 

of  a  marriage,  when  to  be  made  out  and  the  form  thereof,  363  n.  1 : 
must  he  delivered  to  the  clerk  of  the  court  of  common  pleas,  under 
a  penalty,  263. 

form  of,  and  when  necessary  to  au«hent'cn*o  .i  deposition,  91  to  93. 


Inde^J]  CLE  545 

Certificate  —  conLinimL 

that  one  or  moi-e  co-deleaclaiits  are  sureties,  when  to  be  entered  on 
the  docket  and  form  thereof,  105,6.     (see  Executions,) 
Certiorari;  what,  by  whom  and  when  issued,  generally,  129. 

when  issued  on  a  trial  of  right  of  property  taken  on  an  attachment, 

223, 
when  issued  in  attachment  generally,  229. 
when  issued  in  forcible  entry  and  detainer,  307. 
form  of  certificate  to  authenticate  the  transcript  returned  with  the 

certiorari,  179. 
form  of  the  return  upon  the  writ  of  certiorari,  and  how  executed,  130. 
Challenge,   (see  Jury.) 
Challenge  to  Fight;  when  prosecution  to  be  commenced,  495;  proceedings 

in  such  cases,  494,5. 
Character  of  Witness;  when,  how,  and  by  whom  may  be  impeached  64,5! 
Chattels,    (see  Execution — -Sales.) 
Cheating,    (see  Frauds.) 
Check  on  Banks,    (see  Bank  Checks.) 

Children,  (see  Parent  and  Child — Infants — Guardian  aivi  ward — Appren- 
tice and  apprenticeship — Bastards.) 
Choses  in  Action;  all  claims  except  negotiable  bonds,  bills  of  exchange^ 
and  promissory  notes,  are  in  general  called  choses  in  action,  210,11. 
(In  relation  to  the  assignment  of  a  chose  in  action,  see  Assignment  of 
Claims  not  Negotiable.) 
Christian  Name,    (see  Name.) 

Cider  Mill,  erected  by  a  tenant  for  himself,  may  be  levied  on  as  his  goods, 
147;  when  so  erected  may  be  removed  by  the  tenant,  ib. 
cannot  generally  be  sold  on  execution  against  owner  of  the  land,  ib. 
Circumstantial  evidence,  what  is,  67* 
Citation,    (see  Summons.) 

Claimant;  Of  property  taken  on  execution  by  a  constable — may  sue  in  tres- 
pass, or  claim  and  have  a  trial  under  the  statute,  173. 
when  and  how  a  notice  of  claim  to  be  given,  with  a  form,  ih.  n.  1. 
who  to  pay  the  costs  of  the  trial,  174. 
what  parties  may  be  witnesses  on  the  trial,  ib. 
form  of  docket  entry  and  judgment,  175,6. 

form  of  order  for  the  restoration  of  the  property,  174,  n.  2. 
effect  of  the  judgment  on  the  rights  of  the  claimant  and  liabilities 

of  the  constable,  ib.;  no  appeal  allowed,  t6. 
constable  may  sell  the  goods  though  ordered  to  restore  them,  175; 
form  of  bond  in  such  case  to  indemnify  the  officer,  ib.  n.  3. 
Of  property  taken  on  execution  by  the  sheriff;  how  to  proceed,  with 
forms  of  process  and  docket  entries,  468  to  470. 
wIk)  may  be  witnesses  on  such  trial,  174. 
Of  property  taken  on  attachment;  (see  Attachment  against  DebtorSj 
claimant  of  properly  taken.) 
Clearing  land;  by  a  purchaser  before  he  pays  for  the  land,  under  what  cir- 
cumstances he  may  do  it,  464. 
Clerk  of  Courts;  privileged  from  arrest  for  debts,  &c.  and  when,  29. 
Clerk  of  Election;  form  of  oath  to,  300. 

Clerk  of  General  Assembly;  privileged  from  arrest  for  debt,  6cc.  and  when, 
29;  penalty  for  arresting,  ib. 
justice  who  issues  writ  against,  for  a  crime,  must  give  notice  to  the 
General  Assembly,  ib. 

70 


546  eoK  -  [Li  Jew. 

Clerk  of  Townsliip;  his  duty  I'li  relation  to  the  oflicial  ton  J  of  ii  justice,  4; 
as  to  the  ollicial  bond  of  constable,  269. 
must  give  notice,  and  how,  of  expiration  of  the  term  of  office  or  resig- 
nation of  a  justice,  2, 
his  duty  when  a  judgment  is  recovered  against  the  township,  138 

note  1. 
his  duty  and  fees  for  recording  indentures  of  apprenticeship,  197  n.  1. 
Codicil;  form  of,  o20. 
Cognovit,   (see  Warrant,  of  Attorney.) 
Coin;  which  is  a  legal  tender,  456,7. 

Commencement  of  Actions;  cannot  bo  brought  before  breach  of  contract 
or  injury  is  done,  360,  note  2. 
may  bo  without  process,  25;   form  of  docket  entry  in  such  case, 

ib.  note  2. 
how  commenced   against  a  householder   or   freeholder   of  another 

township  or  county,  25  to  27. 
wlien  a  summons  and  when  a  capias,  the  first  process,  27,8. 
Commission;  justice  must  transmit  to  township  clerk  the  date  of  his  con> 
mission,  and  when,  4. 
proof  that  a  person  acts  in  an  office  is  sufficient  without  the  produc- 
tion of  his  commission,  68. 
Commission  Merchant,   (see  Agents  and  Servants.) 
Commitment,    (sec  Mittimus.) 

Common  Carrier;  who  is  so  called,  248.     (sec  Carrier  nf  Goods.) 
Common  Informer,    (see  Penalties.) 

Comparison  of  Handwriting;   witness  who  only  knows  handwriting  by 
comparison  merely,  is  not  a  competent  witness  to  j)rove  such  hand- 
writing, 84. 
Compensation,    (see  Damages  —  Strays — Work  and  Labor,  S^c.) 

cannot  be  allowed  to  a  Constable  or  other  officer,  for  doing  what  the 
law  directs,  where  the  law  is  silent  as  to  fees,  272.     (see  Fees  and 
Costs.) 
Competency  of  Witnesses.     (See  Witnesses.) 

Complaint;  in  forcible  entry  and  detainer,  when  to  be  filed  with  the  justice, 
302;  form  of  such  complaints,  308,9. 
in  criminal  cases,  must  be  by  affidavit,  480.     (See  Affidavit.) 
against  a  master  for  abusing  his  appi'entice,  by  whom  it  may  be  made, 

197;  proceedings  in  such  cases,  with  the  forms,  198,9. 
against  an  apprentice  for  misconduct,  how  made,  with  the  mode  of 
proceeding,  199,200. 
Composition  with  Creditors;  when  valid,  186. 
Compound  Interest;  when  it  may  be  allowed,  354. 
Com[)Ounding  Felonies.     (See  Illegal  Consideration.) 
Compromise.     (See  Accord  and  Satisfaction.) 
Compulsion;  what  force  and  restraint  exercised  when  a  contract  is  entered 

into  will  render  the  contract  void,  284,5. 
Computation  of  Interest.     (See  Interest^) 

Computation  of  Time;  how  computed  when  days,  months,  or  years,  are 
mentioned    in  a  statute,  promissory  note,  or  other  contract,   157 
note  12. 
when  note,  or  other  contract,  is  payable  a  limited  time  after  date, 
388.  403,4. 
Concealment.     (See  Frauds.) 
Condition.     (See  Performance — Bond.) 


[/rtdcx.  u  o  N  547 

Conditional  Promise;  what  it  is  213  note  1, 
Confessions  and  Admissions;  (See  Admissions  and  conjcssions.) 
Confession  of  Judgment;  may  be  for  ^200.  before  a  Justice,  G;  the  $200 
may  be   recovered  by  execution,  with  the  accruing  interest  and 
costs,  6"  note  1. 

form  thereof,  1 2 1 ,2. 

no  api>cal  lies  therefrom,  123. 

form  of  warrant  of  attorney  to  confess,  508;  if  such  v.arrant  is  made 

while  in  custody,  how  to  be  executed,  286. 

Congress,  Members  of;  privileged  from  arrest -for  debt,  &c.  and  when,  28. 

Consent;  by  parties,  v.'ill  not  give  justice  jurisdiction  where  the  law  gives 

him  none,  8.    (Sec  Admissions  and  confessions — Adjournment — 

ConfcssiGn  of  judgment.) 

Conservators  of  the  Peace;  the  duty  of  justices  and  constables,  as  such, 

477,8;  their  duty  and  power  to  suppress  mobs,  497,  note. 
Consideration;  is  the  price  or  motive  of  a  promise  or  contract,  285. 

contract  or  promise  not  binding  unless  founded  on  a  sufficient  con- 
sideration, ib. 

when  acceptance  of  part  of  a  debt  in  discharge  of  the  whole  will  so 
ojx? rate,  and  when  not,  185.6. 

a  party  may  show  a  want  or  failure  of  consideration  for  the  contract 
or  promise  which  is  set  up  against  him,  286;  what  is  meant  by  a 
want  or  failure  of  consideration,  286,7;  the  statute  upon  this  sub- 
ject explained,  286;  it  will  not  relieve  from  a  bad  bargain,  ih.  the 
actual  value  of  the  consideration  immaterial  if  there  was  no  fraud, 
ib.  (See  Frauds.) 

consideration  sufficient  if  it  benefit  the  defendant  or  a  stranger,  287; 
or  is  an  inconvenience  or  detriment  to  the  plaintiff  without  benefit 
to  the  defendant,  ib. 

a  promise  in  consideration  of  a  promise  on  the  other  side,  is  bind- 
ing, 287. 

when  a  promise  in  consideration  of  something  already  done  and  pas- 
sed is  void,  and  when  not,  287.  325,6. 

when  a  promise  to  do  a  thing  which  the  party  was  not  Jjound  in  law 
to  do  is  binding,  and  when  not,  287,8.  (See  Mistake.) 

when  the  consideration  is  to  do  an  imjyossible  thing,  llie  promise 
founded  on  it  is  void,  291 ;  but  not  so  when  the  thing  is  merely  dif- 
ficult to  be  done,  290,1. 

for  a  promise  to  answer  for  the  debt,  default,  or  miscarriage  of  ano- 
ther, when  sufficient,  325,6;  whether  the  consideration  must  in 
such  case  appear  in  the  written  agreement,  327,8. 

the  words  '-for  value  received,"'  immaterial  in  a  negotiable  instru- 
ment, or  in  an  indorsement  thereof,  388. 

what  parties  to  a  negotiable  instrument  may  set  up  a  want  or  failure 
of  consideration,  410.  (See  Promissory  note  —  Negotiable  bond  — 
Bilt  of  exchange.) 

when  there  is  a  partial  failure  of  consideration,  it  will  reduce  the 
amount  of  the  recovery  accordingly,  411  nolo  1,  412  note  1.  (See 
Warranty — Work  and  labor — Fraud.) 

illegal  consideration  makes  the  promise  founded  on  it  void,  288,9; 

what  is  an  illegal  consideration,  288,9;  if  it  has  been  paid,  it  cannot 
be  recovered  back,  289;  effect  of  part  of  the  considerati(jii  being 
illegal,  and  part  good,  ib. 


^'fS  CON  [Index, 

Constable,  (as  to  his  duties  in  the  service  and  return  of  process,  see  the 
various  heads,  in  the  index,  ot^  Stt?nmons — Capias  ad  respondendum 
—  ExccHlion  —  Scire   facias — Venire — Millifims — Warrant,  ^c. 

when  elected,  and  tenn,2G9. 
substance  ot"  his  odicial  oath,  ih. 

requisites  of  his  ofhcial  bond,  and  Iho  forin  and  amount  thereof,  zJ. 
not(>  1:  it  must  be  approved   I)V  the  trustees  of  the  township  and 
fdc-d  ih. 
is  the  ministerial  officer  of  justice's  court.  271, 
may  amend  his  return  to  writs,  41. 

bound  to  keep  the  peace,  and  a|)prehond  felons  within  his  county,  271. 
has  a  right  to  go  on  the  land  of  another  to  execute  process,  404:   but 

if  he  abuse  the  license  he  will  be  a  trespasser,  464. 
Avhen  he  may  arrest  a  person  on  sus})icion,  6cc.  without  warrant, 

478,9. 
his  liability  for  delay  and  escapes  in  executing  crinihial  process,  483. 
must  notify  township  officers  of  their  election,  271. 
his  duties  in  relation  to  township  meetings  and   township  elections, 
271 :  his  compensation  allowed  by  the  trustees  in  these  cases,  272. 
liable  to  fine  for  bidding  at  a  sale  by  him  on  an  execution,  155:  so, 

for  neglecting  to  serve  the  venire  of  a  coroner,  296. 
may  sue  person  who  takes  or  injuries  goods  levied  on,  and  in  his  pos- 
session, 151. 
a  promise  to  pay  him  for  neglecting  to  perform  his  duty  is  void,  288. 
when  contract  to  indemnify  him  for  an  illegal  act,  void  and  when  not, 

171. 
in  what  cases  he  and  his  sureties  arc  liable  to  a  suit  before  a  justice 
for  his  official  misconduct,  272.  275:  are  liable  if  he  fails  to  make 
return  to  writ,  273:  in  what  this  consists,  272:  are  liable  if  he 
makes  a  false  return  to  a  writ,  273 :  what  is  a  false  return,  272.  158 : 
are  liable  if  he  fails  to  pay  over  money  collected  officially,  273:  to 
whom  and  when  he  should  pay  over  money  collected  officially,  164. 
forms  of  process,  and  how  executed,  and  forms  of  docket  entries, 
in  suits  against  him  and  his  sureties,  for  his  official  misconduct, 
273  to  277 :  extent  of  the  liability  of  the  sureties  in  such  case, 
273.  275;  amount  of  damages  which  may  be  recovered  in  these 
proceedings,  272,3:  in  what  cases  no  stay  of  execution  is  allowed 
on  a  judgment  against  t^ constable,  131. 
when  a  justice  may  appoint  a  constable,  the  form  thereof,  and  the 

powers  and  liabilities  of  such  a  constable,  271. 
items  of  fees  of,  generally,  108,9:  for  keeping  live  stock  taken  on 
execution,  153:  in  proceedings  in  attachment,  229:  in  proceedings 
relating  to  strays,  450,1 :  for  notifying  township  election,  and  town- 
ship officei-s  of  their  election,  272. 
how  his  fees  may  be  recovered  in  civil  cases,  110,11 :  how  obtained 

in  criminal  cases,  1 12. 
not  entitled  to  fees  for  removing  goods  taken  on  execution,  153;  nor 
for  doing  any  other  official  act  which  the  hxw  directs,  and  when  the 
law  is  silent  as  to  fees,  272. 
Constructive  notice:  what  it  is,  369  note  3. 

Contempt:  how  and  in  what  case  justice  may  punish  for  disturbances  and 
contempts,  while  he  is  trying  the  cause,  278:  form  of  proceedings, 
process,  and  docket  entries  in  such  case,  279,80. 


Index.]  CON  549 

Continuance.     (See  Adjourmnent.) 

Contract.     (See  Joint  promise  or  conti'iict — Assignment  of  claims  not  nego- 
tiable—  Tender  —  Parties  to  actions.) 

forms  of,  513  to  518. 

upon  which  judgment  is  rendered  by  justice,  must  be  filed,  indorsed, 
and  retained  by  him  in  certain  cases,  40;  or  if  an  appeal  is  taken, 
must  be  filed  in  court,  and  when,  125. 

the  word  Contract  includes  all  promises,  express,  implied,  verbal, 
written,  or  under  seal,  281. 

parol  agreement,  what,  ih.  note  1. 

when  it  is  said  to  be  express,  implied,  executed,  or  executory,  281,2, 

who  has  sufficient  understanding  to  make  a  contract,  284. 

what  threats  or  restraints,  inducing  a  promise  or  contract,  will  make 
it  void,  285. 

what  is  a  sufficient  consideration  for  a  contract,  285  to  288.  (See 
Consideration.) 

what  is  a  failure  of  consideration,  285  to  287.  (See  Consideration — 
Work  and  Labor — Damages — Fraud —  Warrant i/.) 

what  is  an  illegal  consideration,  and  the  efiect  thereof,  288  to  290. 
(See  Consideration.) 

consideration  impossible  to  be  performed  renders  the  promise  found- 
ed on  it  void,  291 ;  but  not  if  it  is  merely  difficult  to  perform,  290,1. 

valid  though  made  and  dated  on  Sunday,  385. 

by  the  wife,  when  binding  on  the  husband,  340.  72,3.  (See  Husband 
and  Wife.) 

of  infants,  when  good  and  when  void  or  voidable,  346  to  349.  (See 
Infants.) 

by  one  partner,  when  it  binds  the  firm  and  when  not,  369.  (See 
Partners  and  Partnership.) 

when  to  answer  for  the  debt,  default  or  miscarriage  of  another,  must 
be  in  writing,  321  to  324.     (See  Sureties.) 

so,  when  not  to  be  performed  within  one  year,  292, 

effect  of  fraudulent  erasure  or  alteration  of,  291,416. 

performance  of;  must  be  according  to  the  intention  of  the  parties,  290; 
at  what  hour  of  the  day,  427,8;  when  contract  is  for  the  sale  of 
property,  425,G;  when  two  acts  are  to  be  done  by  each  party  at 
the  same  time,  429;  when  one  party  is  to  perform  upon  the  per- 
formance by  the  other,  ib;  when  time  for  performance  is  enlarged, 
456 ;  offer  to  perform,  or  prevention  of  performance,  equivalent  to 
performance,  429.  (See  Tender.) 
part  performance  of;  rights  of  parties  in  such  case  428,9.  471  to  474. 
(See    Work   and    Lal>or — Mechanics — Sales — Tender — Money.) 

evidence  relating  to;  cannot  prove  contents  of  written  contract  by 
witnesses,  but  must  produce  it,  78;  unless  it  is  lost,  ib;  or  the  op- 
posite party  has  it,  and  has  had  notice  to  produce  it,  ib.  (See 
Evidence;)  how  the  execution  of  a  written  contract  must  be  proved, 
83,4;  when  it  need  not  be  proved,  81,2.  (See  Evidence;)  defects, 
omissions,  or  mistakes,  in  a  written  instrument,  cannot  be  corrected 
or  supplied  by  verbal  evidence,  84.  327.  513  note  2;  exceptions  to 
this  rule,  17.84,5. 

when  an  account  or  other  claim  is  satisfied  by  taking  a  sealed  instru- 
ment, or  by  a  jurlgment,  or  an  award,  185  note  1,  288. 

when  a  written  contract  is  binding,  though  contrary  to  the  intention 
cf  the  parties,  84  to  86. 


i>50  COR  lliulex. 

Contract  —  continued. 

when  a  verbal  contract  can  be  set  iii»  so  as  to  change  or  alter,  revoko 
or  discharge  the  written  one,  and  when  not,  84  to  8G.  513  n.  2. 

if  made  by  two  or  more,  when  it  is  considered  Joint  and  several,  or 
joint  only,  and  how  to  sue  thereon,  15.  19.    (.See  Farfies  to  Actions.) 

suit  on  contract  for  real  estate  cannot  be  brought  before  a  justice,  7. 

when  money  paid  on,  may  be  recovered  back,  202,3,4.  (See  ill/' .s7crA-e 
— Monc}! — Paijmcnt.) 

when  and  wlio  may  i)ut  an  end  to  or  rescind  the  contract,  and  how 
done,  435.  428;  so  on  account  of  fraud,  4"27.  436,  440;  rights  of  the 
parties  thereafter  in  such  case,  428. 

within  what  lime  an  acticm  on,  must  be  commenced,  363.  (See  Lim- 
itation of  Actions.) 

when  contract  is  entire,  but  one  suit  can  be  brought  on  it,  104. 
Contribution;  joint  trespassers  or  ^\■rong  doers,  cannot  recover  from  each 
other  any  portion  of  money  paid  for  the  injury,  23. 

when  sureties  may  recover  from  each  other  where  one  has  paid  more 
than  his  projjortion  of  thedcbt  of  the  princijjal,  a.nd  when  not,  331,2; 
when  sureties  liable  to  each  other  for  the  costs  of  suit  against  them, 
3;52.  400. 

when  there  is  a  division  of  loss  among  indorscrs  of  negotiable  instru- 
ments, and  when  not,  400. 
Conversion  of  property;  what  amounts  to,  and  when  suit  therefor  may  be 

brought,  12;  damages  in  such  suit,  ?Z(.  356. 
Conveyance,  (See  Wills.)  general  requisites  of  instruments  affecting  real 
estate,  50 1  to  503. 

form  of  a  deed  of  general  warranty,  504;  what  is  a  breach  of  the 
covenants  therein,  504,5,  notes. 

form  of  a  release  or  deed  of  quit  claim,  505. 

form  of  a  mortgage,  506;  of  a  lease,  ift. 

form  of  acknowledgement  of  conveyances,  &c.,  191. 

form  of  bill  of  sale,  and  sale  by  way  of  mortgage,  512. 

when  fraudulent  and  void,  as  against  creditors,  318  to  320. 
Convicts  of  Penitentiary;  what  crimes  render  them  incompetent  as  wit- 
nesses, 58;  not  bound  to  confess  their  own  guilt  unless  they  choose 
65;  pardon  renders  them  competent,  58. 
Co-obligor.     (Sec  Joint  Promises  end  Contracts.) 
Co-partner.     (See  Partners  and  Partncrsliij).) 

Copy  of  Instruments;  upon  proof  of  the  loss  and  execution  of  the  original, 
the  copy  may  be  received  in  evidence,  78:  and  when  no  copy,  the 
contents  may  be  proved  by  v.'itncsscs,  ib. 

by  whom  the  loss  of,  and  search  for  the  original  may  be  proved,  ib. 

copies  of  deeds,  &c.  certified  by  county  lecorder,  may  be  received 
without  the  production  of  the  original  or  proof  of  its  execution, 
79.  81;  so  copies  of  records  of  a  public  nature  duly  certified,  arc 
evidence,  79,80;  so  copies  of  such  records  compared  by  a  witness 
with  the  original,  are  evidence,  79;  how  such  records  should  bo 
certified,  and  what  proof  is  required  of  the  official  character  of  the 
officer,  79,80. 
Coroner;  privileged  from  arrest  for  debt,  &c.,  and  when,  29. 

inguest  of;  when  it  may  be  holden  b)'  a  justice,  293;  when  warrant 
to  issue  for  a  jury,  and  the  command  and  form  thei'eof,  ib.;  form 
of  return  to  the  warrant,  ib.  n.  1 ;  empanneliog  and  swearing  jury, 


Index.]  cur  551 

Coroner — continued, 

and  witnesses,  294;  the  testimuny  must  be  reduced  to  writing,  and 
by  whom  to  be  signed,  with  form  thereof,  294 ;  of  what  the  coroner 
and  jury  shall  inquire,  295;  nature  and  form  of  verdict  of  the  jury, 
ib.;  when  recognizance  of  witnesses  taken,  and  the  form  thereof, 
ib.;  when  witnesses  may  be  committed  to  jail,  296;  when  the  slayer 
of  the  deceased  may  be  arrested,  &c.  ib.;  what  papers  must  be  made 
out  and  returned  to  the  court,  with  form  of  memorandum  of  pro- 
ceedings, i&.,- n.  1;  penalties  against  coroner,  constable,  and  jury, 
for  neglect  of  duty,  ib.;  fees  of  coroner  and  jury,  ib.;  fees  of  con- 
stable, 108,9. 
Corporations;  (See  Banks— Township — School  Districts;)  should  sue  and 
be  sued  in  corporate  name,  17. 
cannot  issue  a  capias  against,  30. 
how  a  summons  is  served  upon  them,  32. 

members  of  private  corporations,  such  as  banks,  &c.  cannot  be  wit- 
nesses for  the  corporation,  60. 
but  members  of  a  public  corporation  may  be  witnesses,  60. 
stock  in,  cannot  be  levied  upon  by  execution,  148. 
Correction  of  Children,  &c.;  apprentice,  child,  and  scholar,  may  be  reason- 
ably whipped,  493. 
Costs.    (See  Fees  and  Costs.) 

Co-surety.   (See  Contribution — Joint  Promise  and  Contract — Sureties.) 
Counsel.  (See  Attorney  at  Late.) 
Counterfeit  Check.   (Sec  Bank  Check.) 
Counterfeit  Money;  payment  of,  will  not  discharge  a  debt,  377  note  1. 

(See  Bill  of  Exchange — Promissory  Note — Negoliahh  Bond.) 
Court;  (See  Judge;)  when  and  how  a  person  may  be  punished  for  noise 

or  contempt,  278;  forujs  for  proceedings  in  such  cases,  280,1. 
Covenant;  (Sec  Coniracts—Adions ;)  what  is  a  breach  of  the  covenants  in 

a  deed  of  warranty,  504,5,  notes. 
Covenantee;  who  is  so  called,  210  note  1. 
Covenantor;  who  is  so  called,  ih.  note  1. 
Cows;  (See  Animals — Strays.) 

Credibility  of  Witness;  ditfercncc  between  the  competency  and  credibility 
of  a  witness.  57. 
if  witness  is  not  competent  he  must  be  sworn  and  examined,  57. 
how  the  credibility  of  a  witness  may  be  impeached,  64,5.     (See  Wit- 
ness.) 
Credit,  Letter  of;  a  proposition  to  guaranty,  not  sufficient,  326. 

what  is  a  sufficient  letter  of  credit  to  bind  the  writer,  326,7;  the  du- 
ties of  the  person  to  whom  it  is  addressed  to  render  the  writer  re- 
sponsible, 327. 
Criers  of  Courts;  privileged  from  arrest  for  debt  &c.  and  when,  29. 
Crimes  and  misdemeanors;  jurisdiction  of  justice,  477,8;  jurisdiction  when 
offence  is  against  the  laws  of  a  sister  State  or  Territory,  487.  (See 

Assault   and   Battery — Fighting Rccogni-rance—C/iallenging  to 

Fight — Penalties.) 
arrests  for  without  warrant,  when  proper,  478.9. 
affidavit  whereon  to  issue  a  State  warrant,  479,80. 
forms  of  warrants,  480,1 ;  service  and  return  thereof,  482  to  484. 
adjournment  of  trial,  with  forms  in  such  cases,  484,5. 
form  of  subpaina  for  witness,  484. 
of  the  trial  and  examination,  484,6. 


552  DAY  [Index. 

Ci-imes  and  Misdemeanors — continued. 

amount  of  the  recognizance,  and  form  thereof,  and  of  the  mittimus, 

48G  to  488. 
recognizance  of  witnesses,  488. 
docket  entries  and  transcripts,  489. 
Crops;  who  is  entitled  to,  and  must  sue  for  injury  done  to,  hefore  or  after 

the  decease  of  the  owner,  18. 
on  kind  of  wile,  to  whom  they  go  on  the  decease  of  the  hushand  or 

the  wife,  336. 
sown  by  tenant  which  ripen  after  the  lease  expires,  to  whom  they  go, 

466  note  2. 
who  must  sue  for  injury  to,  when  the  land  i.s  leased  or  worked  on 

shares,  466. 
who  entitled  to  when  the  tenant  who  works  tlu;  land  on  shares  aban- 
dons his  contract,  474. 
may  be  levied  upon  by  execution  as  goods  and  sold,  though  unripe, 

146;  in  such  case  the  purchaser  has  a  right  to  enter  and  gather 

it,  ib. 
when  taken  on  execution  or  attachment,  must  be  sold  subject  to  the 

claim  of  the  landlord  or  tenant,  156. 
Cross  Examination  of  Witnesses;  how  to  be  conducted,  63,4. 
Currency;  when  mentioned  in  a  contract  it  relates  to  the  currency  of  the 

place  where  the  contract  is  payable,  457. 
what  kind  of  money  is  a  legal  tender,  456,7. 
Custody.    (See  Arrest — Escape.) 

Damages;  amount  of,  for  keeping  or  converting  property  by  a  wrongdoer, 

356.  12. 
amount  which  may  be  recovered  for  an  escape,  36.  170.  172;  or  for 

a  false  return,  &c.  272,3. 
how  value  of  goods  lost  or  injured  by  a  carrier  is  to  be  estimated,  255. 
in  suit  on  bond  with  a  penalty,  what  amount  can  be  recovered,  384, 

note  1. 
amount  which  buyer  of  property  can  recover  from  seller  when  the 

latter  neglects  or  refuses  to  deliver  the  property,  431 ;  or  when  the 

seller  has  tendered  the  property,  and  is  sued  for  its  non-delivery, 

430,1.460,1.  (See  Tender.) 
for  fraud  in  the  quality  of  things  sold,  435.  441. 
for  false  warranty  of  things  sotd,  338,9.  433. 
effect  of  tender  of  damages  before  suit  brought,  455,6.  461.     (See 

Tender.) 
when  landlord  forcibly  turns  out  his  tenant   after  the  lease  has  ex- 
pired, 466. 
when  suit  is  brought  for  amount  found  by  fence  viewers,  467. 
when  the  defendant  has  trespassed  upon  land  and  at  the  same  time 

taken  or  injured  personal  property,  ib. 
how  damages  may  be  reduced  in  suit  for  price  of  property  sold,  '132, 

440;  in  suit  for  performance  of  work,  474. 
Date;  not  necessary  to  a  note,  bond,  bill  of  exchange  or  other  contract,  385; 

effect  of  not  being  dated,  or  liaving  an  impossible  date,  ib. 
contract  &c  good,  though  made  and  dated  on  Sunday,  ib. 
instrument  takes  eiTcct  from  its  delivery  and  not  from  date,  86.    (See 

Compu/afioii  of  Time.) 
Day  Book.    (See  Account  and  Account  Book.) 


Index.]  bfep  553 

Days;  when  mentioned  in  a  statute,  note,  contract, &;c.  how  computed,  157 

note  12. 
Days  of  Grace;  what  they  are,  &c.  403. 
Deaf  and  Dumb;  how  examined  as  witnesses,  58. 
Death.     (See  Decease.) 
Debt,  Action  of,  (See  Penalties;)  when  it  may  be  brought,  1 1 ;  within  what 

time  it  must  be  brought,  358.     (See  Limitation  of  Actions.) 
Debtor,  Absconding.     (See  Attachment — Absconding  Debtor.) 
Decease;  of  principal,  destroys  power  of  agent,  21. 

when  one  or  more  joint  promissors  or  promissees,  or  joint  owners  of 

property,  die,  how  to  sue  and  be  sued,  16.  19,20. 
who  must  sue  when  the  person  against  whom  an  injury  was  commit- 
ted has  died,  18. 
who  must  be  sued  when  the  person  who  committed  the  injury  has 

died,  23. 
effect  of  the  decease  of  a  party  while  suit  is  pending,  or  after  a  judg- 
ment, or  after  a  levy,  24.  154. 
effect  of  the  death  of  the  defendant  upon  the  liability  of  the  surety 

for  the  stay  of  execution,  134. 
effect  of  the  decease  of  the  husband  or  the  wife  upon  the  rights  of  the 

husband  to  her  property,  336  to  338. 
effect  of  his  decease  upon  his  liability  for  debts  due  or  injuries  done 

by  the  wife  before  the  marriage,  338. 
effect  of  the  decease  of  a  partner  upon  the  rights  and  powers  of  the 

surviving  partners,  372. 
a  person  is  presumed  to  be  dead  when  no  account  has  been  heard  for 

seven  years,  68;  and  see  note  (e)  on  same  page, 
when  and  how  what  a  deceased  witness  said  on  a  former  trial  nnay  be 

proved,  69. 
the  decease  of  a  person  may  be  proved  by  hearsay,  ib. 
Deceit.     (See  Falsehood — Frauds.) 

Decision  of  Cause;  how  the  testimony  to  be  considered  by  justice,  102. 
Deed;  justice  may  take  acknowledgment  of,  while  he  is  in  his  county,  5. 
form  of  certificate  of  acknowledgment,  191;  fee  for  taking  acknow- 
ledgment, 108. 
all  contracts  under  seal  are  called  deeds,  281. 

certified  copy  of  deeds,  &:c.  from  recorder's  office  may  be  received  in 
evidence,  79;  in  such  case  the  execution  of  the  original  need  not  be 
proved,  81. 
of  sheriff,  how  to  be  executed,  what  it  conveys,  and  when  void,  304. 
conveying  lands  to  husband  and  wife,  what  estate  each  has,  336. 
by  husband  alone,  of  his  wife's  land,  what  estate  it  will  convey,  ib. 
general  requisites  of  instruments  affecting  real  estate,  412,13. 
form  of  a  general  warranty  deed,  504;  of  a  release  or  deed  of  quit 
claim,  505;  a  mortgage,  506. 
Default;  how  to  proceed  wlicn  one  or  both  parties  fail  to  appear  on  the  day 
of  trial  when  suit  is  commenced  by  summons,  45,6. 
how  defendant  may  have  judgment  by  deficit  set  aside  and  new  trial, 

45,  '  «^ 

how  to  proceed  when  defendant  is  sued  by  capias  and  fails  to  ajjpear 
according  to  his  recognizance,  51,2;  in  criminal  cases,  when  defen- 
dant fails  to  appear  on  the  adjourned  (Ifiy  of  trial,  and  how  default 
is  entered,  485,6,7. 
Defence  of  possession.     (See  Assault  and  Battery — Trespass  to  Land.) 
71 


654  DOC  [Index. 

Delivery;  written  contraet  or  dectl  takes  cflect  from  the  time  the  instru- 
ment is  delivered,  and  not  from  its  date,  85. 
in  -what  cases  the  ownership  of  goods  passes  without  delivery,  and 
when  not,  422.  425. 
Demand;  at  what  time  in  the  day  demand  should  be  made,  404.  427.  330. 
when  neeessary  where  suit  is  brought  for  wrongfully  keeping,  using 

or  converting  property,  12. 
when  necessary  before  suit,  on  a  contract  of  sale,  426.     (See  Sales.} 
if  note  is  payable  on,  when  due,  388;  statute  of  limitations  does  not 
run  on  until  demand,  359;  interest  not  chargeable  on  until  demand, 
.    351. 

what  di;lay  in  making  demand  upon  the  rk'btor  will  discharge  the  as- 
signor of  a  claim  not  negotiable  from  liability  to  the  assignee,  214. 
S28.     (See  Assignment  of  Claims  not  Negotiable.) 
when  and  how  demand  should  be  made  upon  negotiable  instruments, 
402,3,4.     (See  rromissory  Note  —  Bill  of  Exchange  —  Negotiable 
Bond.) 
Deposit;  by  taker  up  of  stray,  when  to  be  made,  and  amount,  447. 
as  security  for  costs,  when  it  may  be  made,  27. 
of  the  amoimt  of  a  tender,  to  whom  it  belongs,  458  to  460. 
of  money  in  bank,  rights  of  bank  and  depositor,  240. 
of  goods,  to  be  kept  without  reward  —  the  rights  and  liabilities  of  the 
parties  in  such  case,  238  to  240. 
Depositions;  of  what  witnesses,  may  be  read  in  evidence,  and  by  and  be- 
fore whom  they  may  be  taken,  87. 
form  of  notice  of  taking,  ib.;  when,  how  and  by  whom  this  notice 

must  be  served,  88. 
how  attendance  of  witnesses  may  be  enforced,  and  forms  of  subpoena 
for,  88,9;  form  of  oath  to  witnesses,  89;  refusal  of  witnesses  to  an- 
swer questions,  and  how  punished,  ib. 
form  of  deposition  and  of  the  certiiicate  of  the  justice  90,1 ;  when  and 

what  certificate  is  necessary  besides  that  of  the  justice,  91,2. 
what  defects  and  omissions  will  prevent  a  deposition  from  being  read 

in  .evidence,  92,3. 
when  taken  in  one  suit  cannot  be  used  in  another,  104. 
fees  relating  to  the  taking  of  depositions,  108. 

when  a  cause  is  appealed,  they  must  be  sent  to  clerk,  and  when,  125. 
form  of  depositions  taken  at  coroner's  inquest,  and  how  signed,  294; 

must  be  transmitted  to  the  court  of  common  pleas,  296. 
when  taken  to  contest  an  election,  and  notice  thereof,  297;  form  of 
the  notice  in  such  case,  ib.  n.  1 ;  form  of  the  depositions,  298;  what 
they  should  contain,  and  how  and  to  whom  transmitted,  ib. 
Detainer.     (See  Forcible  Entry  and  Detainer.) 

Deviation  from  a  Voyage;  effect  of,  on  liability  of  a  carrier  of  goods,  251. 
Devise;  forms  of,  619  to  522.     (See  Wills.) 

Discharge;  (See  Release — Receipt;)  an  accused  person  brought  up,  exam- 
ined and  dischai-gcd  by  a  justice,  rn^ay  be  again  taken  for  the  same 
offence,  486  n.  2. 
Discontinuance;  what  it  is,  46;  fees  for,  when  jjarty  settles  suit,  &c.  108. 
Disturbance;  of  justice,  when  trying  cause,  how  punished,  278;  form  of 

docket  entry  in  such  case,  279,80. 
Divorce;  when  from  bed  and  board  only,  its  effect  on  liability  of  the  hus- 
band, 339. 
Docket.     (As  to  forms  of  docket  entries,  see  Entries  on  the  Docket.) 
how  it  should  be  kept,  114. 


Index.]  ELK  555 

Docket— contimied. 

what  matters  should  be  entered  on,  in  the  progress  of  a  cause,  11 5, 16. 

may  correct  clerical  errors  or  omissions,  116. 

need  not  state  what  a  party  urged,  or  what  testimony  overruled,  130. 

will  be  received  in  evidence  where  a  transcript  would,  177. 

should  not  be  taken  from  office,  ih. 

form  of  certificate  to  authenticate  transcript  from,  179. 

suits  upon  certified  transcripts  from,  how  conducted,  178  to  1€0> 

how  to  obtain  the  docket  of  a  justice  who  has  removed  from  the  coun* 

ty,  178.  _  .  _ 

what  to  be  done  with  the  docket  if  the  office  should  become  vacant, 

and  how  to  proceed  thereon,  178  to  180. 
book  to  enter  appraisement  of  strays,  to  be  kept  by  justice,  4'54;  to 

whom  stray  book  to  be  delivered  when  term  of  office  expires,  ib. 
Dogs;  when  the  owner  is  liable  for  injuries  done  by,  and  when  a  person 

is  justified  in  killing,  10. 
Doors;  when  they  may  be  broken  open  to  serve  a  capias  in  a  civil  suit, 

35;  to  seize  goods  on  an  execution,  148;  to  take  the  body  on  an 

execution,  197;  to  take  a  person  accused  of  crime,  and  without  a 

warrant,  479;  to  take  a  person  on  a  common  State  warranty  482,3; 

to  execute  a  search  warrant,  482. 

Doorkeepers  of  the  General  Assembly;  privileged  from  arrest  for  debt, 
&c. 'and  when,  29.  139. 
penalty  for  arresting,  29. 

justice  must  give  notice  to  General  Assembly  of  the  issuing  of  criminal 
process  against,  29. 

Dormant  Partner;  is  a  secret  partner  of  a  firm,  368  note  2. 
is  liable  for  the  debts  of  the  firm,  ib. 
he  need  not  be  joined  in  an  action  by  or  against  the  firm,  374. 

Drawer  and  Drawee  of  a  Bill  of  Exchange;  what  parties  are  so  called,  381. 
(See  Bill  of  Exchange.) 

Draymen;  are  liable  for  loss  or  injury  to  goods  as  common  carriers,  248. 
(See  Carrier  of  Goods.) 

Drifts;  right  of  taker  up  of  boat,  raft,  &c.  gone  or  going  adrift,  and  pro- 
ceedings in  such  cases,  452,3. 

[As  to  entering  upon  the   land  of  another  to  remove  drift  wood, 
see  Stat.  604,5. 

Driver  of  Stages;  proprietors  of  stages  are  liable  for  accidents  which  arise 

from  driver  not  being  skillful,  careful,  or  acquainted  with  the  road, 

&c.  255,6.     (See  Stage  proprietors;  and  see  Stat.  p.  865,6. 
Drunkenness;  when  defendant  may  avoid  his  contract  on  account  of  his 

being  drunk  when  he  made  it,  284  note  2. 
Duress.  (Sec  Restraint.) 

Dwelling  house.  (See  Breaking  oj)en  doors — Building,  contract  for.) 
Dyers.  (Sec  Mechanics — Lien.) 
Easement.  (See  Highways.) 
EE;  when  used  at  the  termination  of  a  word  designating  the  parties  to  a 

transaction,  it  has  a  passive  signification,  as  grant-ec,  &c.  210, 

note  1. 
Ejectment;  action  of,  cannot  be  brought  before  a  justice,  8. 
Election;  of  justices,  how  conducted,  2. 

how  contested,  2,3. 

when  justice  m;iy  preside  at  trial  of  contested  olfaction,  3. 


556 


ENT 


[Index. 


Election — coyit  imied. 

may  be  had  before  a  vacancy,  2. 

constable  to  give  notice  of  township  election,  wlien  and  how,  271. 

contest  ing  of  an;  qontestor  must  be  a  voter  of  county,  297. 

how  to  give  notice  thereof,  and  how,  when  and  where  served,  297 j 

form  of  the  notice,  ib. 
who  to  take  testimony,  ib. 
substance  of  subpama  for  witness,  298  note  1. 

form  of  deposition,  ib.;  to  whom  to  be  sent,  and  when  and  how,  ib. 
opening  and  certifying  returns,  when,  how,  and  by  whom  done,  299. 
form  of  oath  to  judges  and  clerks  of,  ib. 
Emblements.  (See  Crops.) 
Endorsement.  (See  Assignment  of  claims  not  ncgotiab/e — Bi/I  of  exchange 

— Promissory  note — Negotinb/c  bond.) 
Entries  on  the  Docket,  forms  of;  [As  to  general  directions  how  a  docket 
should  be  kept,  see  Docket.^ 

when  the  suit  is  an  amicable  one,  ami  without  process, 25. 

when  suit  is  brought  on  an  account,  117;  on  a  note,  and  a  capias  is- 
sues, 118;  on  a  bond,  119. 

when  judgment  is  confessed,  121,2. 

defendant  lails  to  appear  and  a  trial  is  had,  1 17. 
when  a  set  ofT  is  allowed,  106.  120. 

when  summons  is  served  by  copy  lel't  at  dwelling  house,  120. 

jury  trial,  122.  100.  101. 

■when  judgment  is  set  aside  and  a  new  trial  had,  1 17. 

nonsuit,  102.  118. 

judgment  on  the  merits  for  the  plaintilF,  105. 

judgment  on  the  merits  for  the  defendant,  106. 118. 

judgment  on  a  discontinuance,  103. 

judgment  for  a  fme  or  penalty,  56.  66. 

suit  by  administrators  or  executors,  115  note  1. 

suit  against  administrators  or  executors,  1 19  to  121. 

when  an  executor  or  administrator  appeals,  124. 

suit  by  partners,  1 18. 

suit  against  surviving  partners,  &c.  1 18.  374  note  1. 

suit  by  and  against  school  district,  17.  20. 

suit  by  or  against  a  township,  ib. 

suit  by  or  against  other  corporations,  ib. 

suit  by  and  against  infant,  349. 

suit  on  a  penal  statute,  491. 

proceedings  against  a  witness  on  an  attachment,  for  not  obeying  sub- 
poena, 54;  for  refusing  to  testify,  66. 

when  defendant  is  sued  by  a  wrong  name,  and  appears  to  the  action, 
44  note  10. 

the  defendant  denying  by  affidavit,  his  signature  to  a  note,  &c.  82,3. 

the  defendant  entering  into  a  recognizance  on  an  adjournment,  119. 

suit  by  scire  facias  on  a  recognizance  of  appeal,  128;  on  a  recogni- 
zance for  stay  of  execution,  136,7. 

trial  of  right  of  property  taken  by  a  constable,  175,6;  or  by  a  sher- 
iff, 470. 

suit  on  transcript  from  or  on  docket  of  another  justice,  181. 

suggestion  that  the  defendant  has  lands  liable  to  execution,  163. 

proceedings  by  an  apprentice  or  others  against  his  master,  199,  n.  3. 

in  attachment  against  a  debtor,  233.  236. 

in  cases  of  bastardy,  268,9. 


Index.']  Evi  557 

Entries  on  the  Docket,  forms  of — continued. 

in  suit  against  a  constable  and  his  sureties,  275.  277. 
proceedings  against  a  person  for  contempt  in  justice's  court,  279. 
in  action  of  forcible  entry  and  detainer,  313  to  315. 
in  cases  of  tender  of  damages  or  debt,  labor,  &c.  459  to  461. 
in  criminal  cases,  489. 

Entry,  Forcible.     (See  Forcible  Entry  and  Detainer.) 

Erasure;  effect  of  fraudulently  altering  an  instrument,  291.  416. 

Errors.     (See  Mistakes.) 

Escape;  in  criminal  cases,  483. 

on  a  capias:  what  will  be  deemed,  and  the  rights  and  liabilities  of  the 
constable  in  such  case,  36;  when  and  where  and  how  the  prisoner 
may  be  retaken,  ih.;  ofhcer  not  liable  in  such  case  if  the  defendant 
is  sick  or  rescued,  37. 
on  an  execution  for  the  body:  what  will  be  deemed,  and  the  liabilities 
of  constable  and  parties,  170  to  172;  in  what  cases,  and  when  and 
where  and  how  the  officer  may  retake  the  defendant,  vi.;  whether 
the  officer  is  liable  if  defendant  is  rescued,  168.  171  n.  8;  when  es- 
cape is  by  consent  of  the  plaintiff,  the  judgment  is  discharged,  and 
the  officer  is  not  liable,  171;  but  consent  of  plaintitf  thereto  after  the 
escape,  will  not  discharge  the  officer,  ib.  n.  7. 

Estrays.     (See  Strays.) 

Evidence.  (See  Transcript's — Account  Book — as  to  the  attendance,  exam- 
ination, and  competency  of  witnesses,  see  Witnesses.) 

of  the  plaintiff:  must  be  lirst  examined,  63;  must  be  confined  to  his 
bill  of  particulars,  38;  except  to  prove  defence  or  payment,  or  a 
set-off,  38,9. 

of  the  defendant:  as  to  set-off,  must  be  confined  to  his  bill  of  particu- 
lars, 38.  (See  Set-off — Bill  of  particulars;)  when  the  opinion  of 
a  witness  or  his  statement  of  the  substance  of  a  conversation  will  be 
received,  and  when  not,  64. 

hearsay  evidence:  what  others  have  said,  not  in  general  admissible  in 
evidence,  68;  not  to  prove  what  witness  beyond  reach  of  subpoena 
swore  on  a  former  trial,  69;  but  may  prove  what  a  person  said 
when  he  did  an  act,  if  the  act  itself  be  otherwise  proved,  and  is 
material,  69;  and  so  may  prove  what  the  other  party  has  said,  ib.; 
and  so,  to  discredit  a  witness,  may  prove  what  he  has  said,  64;  when 
a  party  may  prove  what  he  himself  has  said,  69.  71;  may  prove 
by  hearsay  the  decease  of  a  person,  69;  so,  what  a  person  has  said 
from  whom  both  parties  claim  or  derive  title  to  the  j)roperty  in  dis- 
pute, 69.  306;  so,  as  to  the  time  of  the  birth  of  a  child,  70;  so,  what 
a  deceased  witness  swore  on  a  former  trial  between  the  same  ])ar- 
ties,  69 

admissions  and  confessions;  by  parties  to  the  suit:  when  a  party  may 
prove  his  own  declarations,  69.  71 ;  by  words  and  conduct  and  si- 
lence, 71 ;  when  a  party  may  prove  that  his  admissions  were  false, 
71;  cannot  be  received  to  prove  contents  of  a  paper  unless  the 
paper  be  lost,  or  its  absence  be  accounted  for,  72.  77;  but  may  be 
received  to  prove  facts  admitted  out  of  the  paper,  72;  when  made 
in  order  to  avoid  a  suit  and  to  induce  a  com{)romisc  cannot  bo  re- 
ceived, 74,5;  so  when  made  to  an  attorney  in  his  professional  char- 
acter, 76. 
by  tenant,  72. 


550  E  V  I  [liKkx. 

Evidence — confinued. 

admissions  and  confessions — continued. 

by  person  under  wliom  the  defendant  el;iims,  when  admissible  against 

him,  69.  30G. 
by  agents,  wlien  a(hnissil)k!  against  their  i)rinci|>als,  72. 
by  tlie  wile,  when  aeting  as  the  agtuit  of  her  luisband,  72,3. 
by  one  joint  promissor,  wlien  a(hnissil)le  against  all,  73.362. 
by  a  ])artncr,  when  evidence  against  the  iirm,  ib. 
by  a  trespasser  or  wrongdoer,  wlien  evidence  against  his  confeder- 
ates, 73. 
by  a  criminal,  cannot  1)C  received  in  evidence  unless  voluntary  and 

without  promise  or  threat,  ib. 
how  to  be  construed — the  whole  must  be  taken  together,  74. 
what  others  than  parties  to  the  suit  have  said,  cannot  in  general  be 

received  in  evidence,  69,70;  exception  to  this  rule,  69,70.  306. 
presumptive  or  circumslanlial  evi'/cnce:  what  it  is,  and  the  dincrencc 
between  it  and  positive  proof,  67;  any  fact  is  capable  of  proof  by  it, 
67;  when  payment  is  presumed,  68;  or  that  a  person  is  the  owner 
of  property,  ib.;  or  that  a  person  is  dead,?'^.;  or  that  a  person  holds 
an  office,  ib. 
by  writings:  what  verbal  agreen)cnts  and  testimony  may  be  set  up  to 
vary,  explain,  correct,  discharge,  or  revoke  a  written  or  a  sealed 
agreement,  84  to  86. 
verbal  evidence  of  contents  of  written  instruments,  cannot  be  re- 
ceived in  evidence  if  objected  to,  and  the  instrument  must  be 
produced,  77;  unless  the  instrument  is  lost,  78;  (See  Bill  of 
Exchange — Promissory  Note — Negotiable  Bond;)  or  the  instru- 
ment is  in  the  possession  of  the  opposite  party,  and  he  has  had 
notice  to  produce  it,  78;  or  when  the  instrument  conveys  or  af- 
fects lands,  and  is  recorded  and  a  copy  thereof  is  produced,  79; 
or  when  the  instrument  is  a  record  of  public  nature  and  authen- 
ticated copy  is  produced,  79,80;  or  the  writing  is  a  receipt  or  ac- 
count book,  or  pi'ivate  memorandum,  ib. 
how  copies  of  records  and  instrum.ents  affecting  land,  must  be  au- 
thenticated, 79,80. 
the  execution  of  written  instruments  must  be  proved   before  they 
can  1x3  received  in  evidence,  80;  unless  an   authenticated  copy 
can  be  received  as  above  mentioned,  8 1 ;  or  one  party  who  claims 
an  interest  under  it,  produces  it  for  the  other  party,  ib.  or  the  suit 
is  brought  on  an  instrument  under  seal,  or  upon  a  promissory 
note  or  bill  of  exchange,  yZ». 
proceedings  and  evidence  when  defendant  fdes  an  affidavit  denying 
the  execution  of  a  promissory  note,  bill  of  exchange,  or  writing 
under  seal,  82,3. 
how  the  execution  of  writings  must  be  proved,  and  when  the  at- 
testing witness  can  alone  prove  their  execution,  83,4. 
when  an  appeal  is  taken,  the  justice  must  send  the  written  evidence 
and  depositions  to  the  clerk  of  the  court,  and  when,  125. 
by  d/"j)osiiions;   when  allowed  to  be  given  in  evidence,  87;  what  de- 
fects in  certilicate,  notice,  deposition,  &c.  will  prevent  a  depo- 
sition from  lx?ing  received  in  evidence,  92,3.     (Sec  Depositions.) 
parol  evidence;  is  such  evidence  as  arises  from  the  verbal  testimony 
of  witnesses,  281  n.  1. 
cannot  be  received  to  prove  the  contents  of  a  written  instrument, 
77;  exception  to  this  rule,  78.  80. 


Index."]  EXE  559 

Evidence — j)aroI — continued. 

cannot  in  general  be  received  to  change  or  alte*r,  or  to  show  a  mis- 
take in  a  written  agj-eenient,  84.  327. 

when  it  can  and  when  it  cannot  be  received  to  show  that  the  parties 
aftenmrds,  by  verbal  agreement,  changed,  discharged  or  revoked 
the  written  agreement,  84. 

cannot  be  received  to  prove  that  a  witness  has  been  convicted  of  a 
crime,  58;  but  the  witness  may  be  asked  if  he  is  guilty  of  the  al- 
ledged  crime,  59. 

on  whom  ihe  burden  of  proof  resfs:  where  the  defendant  attempts  to 
avoid  his  contract  on  the  ground  of  insanity,  284. 
in  suit  against  the  hirer  of  an  article,  for  its  injury  or  loss,  245. 
in  suit  against  the  carrier  of  goods  for  injury  or  loss,  245  n.  1.  254. 
in  a  suit  on  a  negotiable  instrument  that  has  been  lost,  4 1 8. 
in  a  suit  on  a  warranty,  or  for  fraud  in  quality  of  goods  sold,  440. 
the  plaintiff'must  first  make  out  a  cause  of  action  by  proofs  or  the 
admission  of  the  defendant  on  the  trial,  (i3. 

what  proof  necessary  to  show  an  absolute  sale  or  mortgage  of  goods 
without  possession  fraudulent,  318  to  320. 

when  parties  may  prove  that  the  return  of  an  officer  to  a  writ  is 
false,  and  when  not,  41,2. 

in  a  suit  on  a  judgment,  what  defendant  may  pi-ove  in  defence,  180. 

what  the  defendant  may  prove  ^^•hen  sued  on  an  award  or  arbitra- 
tion bond,  209. 

how  partnership  may  be  proved,  375. 

in  crbni'ud  cases;  party  injured  may  be  a  witness,  486. 
what  proof  of  guilt  should  be  required  by  the  justice,  486. 
confessions  of  accused,  when  received  and  when  not,  73. 
Examination  of  Criminals;  proceedings  on  the  trial,  485;  amount  of  re- 
cognizance, 486;  form  of  recognizance  and  mittimus,  in  such  case, 
484.  487;  docket  entries  in  such  case,  489;  what  to  be  done  with 
the  transcript  and  recognizance,  489. 
Examination  of  a  Witness;  how  conducted,  63,4.  (See  Witness — Evidence^ 
Exceptions,  bill  of;  98  to  102. 
Exchange,  Bill  of;  (See  Bill  of  Exchange.) 
Execution. 

stay  of;  when  allowed  and  when  not,  131,2. 

for  what  time  allowed,  132. 

when  and  how  to  be  obtained,  with  form  of  recognizance  tlierefor, 
132,3. 

no  delay  in  issuing  execution  to  give  defendant  time  to  enter  into 
such  recognizance,  133;  but  if  execution  has  been  issued,  justice 
must  recall  it,  and  how,  133. 

when  second  recognizance  for,  may  be  required,  134;  which  recog- 
nizance to  be  first  prosecuted  in  such  case,  J  35. 
surely  for  stay  of ;  how  made  liable  to  judgment,  134. 

execution  must  ijc  first  issued  and  relurned  against  defendant,  before 
proceeding  against  such  surely,  ib. 

effect  of  death  of  defendant  on  his  liability,  ib. 

form  of  scini  facias  against,  and  how  prosecuted,  135,6. 

may  be  proceeded  against  if  in  the  county,  5. 

may  have  execution  issued  on  the  original  judgment,  133,4.  137,8. 

may  sue  defendant  on  a  transcrii)t  of  th(^  judgment,  and  how  and 
where,  137. 

when  he  may  recover  from  the  surety  of  tiie  defendant,  332. 


560  EXE  [Index. 

Execution — surety  for  siay  of — continued. 

justice  not  bound  to  issue  execution  nftor  the  stay  expires,  unless 

requested,  141. 
eficct  of  defendant  staying  proceedings,  after  ;i  levy,  154.  163  n.  7. 
entering  stay  docs  not  prevent  delV;ndant  from  entering  appeal,  118. 

issuing  of;  what  kind  first  issued,  i38. 

form  of  affidavit  to  procure  execution  against  the  body,  140. 
when  further  execution  may  be  issued,  157.  139. 
Avhen  to  be  issued  against  goods,  liability  of  justice  for  delay,  138. 
cannot  be  issued  against  a  township,  ih.     (See  Tomisliij).) 
when  it  may  be  issued  to  another  township  of  county,  140. 
when  to  issue  before  the  time  of  stay  expires,   133,4;  or  for  the 
benefit  of  surety  for  stay,  137;  or  for  the  benefit  of  surety  for  an 
appeal,  129. 
when  plaintitfmay  issue  on  the  original  judgment,  after  execution 

returned  against  the  bail  for  stay,  137. 
at  what  time  and  how, against  executors  and,administrators,  194.143 
by  judge,  for  costs  of  a  contested  election,  3, 
to  compel  either  party  to  pay  his  own  costs,  1 10  n.  3. 
for  the  sale  of  j)ropcrty  taken  on  an  attachment,  228. 
against  a  garnishee  in  attachment,  229. 
when  it  must  issue  against  property  remaining  unsold,  141. 
form  of;  against  goods  and  chattels,  142;  against  goods,  chattels,  and 
body,   142;  against  co-defendants,  wlien  some  are  certified  to  be 
sureties,   142,3;  against  executors  dr.administrators,  143;  against 
property  taken  on  attachment,'  228,9  note  2^f  against  property  re- 
maining in  the  hands  of  an  officer  unsold,  143,4;  to  compel  either 
party  to  pay  his  own  costs,  1 10  note  3. 
i7idorsemcnt  of;  must  be  indorsed  with  the  amount  of  costs  made  by 
the  party  against  whom  it  issues,  109;  how  indorsed  when  issued 
for  the  tenefit  of  the  surety  to  an  appeal,  129;  or  issued  for  the 
benefit  of  the  surety  for  stay,  137. 
when  execution  or  judgment  void,  proceedings  under  it  are  void,  166; 
the  constable  should  not  execute  such  writ,  34;  when  execution  in- 
formal or  irregular,  proceedings  under  it  good,  166;  and  the  con- 
stable must  execute  such  writ,  34. 
what  search  must  be  made  for  goods,  by  the  officer,  158. 
levy  hj;  what  property  exempt  from,  and  how  value  thereof  to  be  as- 
certained, 145,6;  when  and  what  force  may  be  used  in  entering 
houses,  and  breaking  open  trunks,  doors,  &c.  to  obtain  property, 
148,9;  duty  of  the  officer  to  seek  for  goods,  and  his  liability  for 
neglect,  158.  163;  what  property  may  be  taken  as  goods,  and  what 
not,  146  to  148;  upon  property  mortgaged  or  hired,  148;  upon 
property  sold,  but  not  delivered,  422  to  425;  (See  Sales;)  when 
the  execution  is  against  or  in  favor  of  a  bank,  264;  or  against  a 
silent  partner  of  a  firm,  377;  cannot  be  made  after  the  decease 
of  a  party  to  the  execution,  154;  may  be  made  on  return  day  of 
the  execution,  but  not  after,  158;  the  goods  should  be  taken  into 
the  possession  of  the  officer,  149,50;  what  is  a  good  levy  and  what 
not,  149,50;  if  made  before  or  after  the  officer  has  paid  the  execu- 
tion, it  is  void,  150;  when  sufficient  goods  are  taken  to  pay  the 
execution,   while   the    levy   subsists,   the   judgment    is   satisfied, 
though  the  goods  are  afterwards  wasted  by  the  officer,  &c.   151; 
officer  lirble  to  both  parties  after  the  levy,  for  the  due  application 


Index.]  EXE  561 

(Execution — levy  hy — continued.) 

of  the  goods,  150,1 ;  lialjility  of  officer  for  taking  goods  not  belong- 
ing to  the  defendant,  or  for  not  taking  goods  of  the  defendant,  173; 
when  and  how  a  priority  of  a  levy  will  gain  a  preference,  163,4; 
is  destroyed  if  plaintitf  stays  proceedings  after  the  levy  but  for  an 
hour,  153  note  7;  or  permits  the  property  to  remain  with  the  oflicer 
an  unreasonable  time,  154;  when  the  levy  is  so  destroyed,  how  it 
may  be  restored,  ib. 

redelivery  to  the  debtor  of  goods  levied  on;  if  done  by  the  direction  of 
the  plaintitr,  without  bond  for  redelivery,  it  destroys  the  levy,  ib,* 
when  and  what  kind  of  pi-operty  levied  upon  may  be  left  in  the  pos- 
session of  the  debtor  by  the  constable  or  plaintiti",  151  to  154;  form 
of  bond  for  redelivery,  in  such  case,  151  note  4;  liability  of  officer 
if  the  goods  are  not  redelivered,  152. 

trial  of  claimant's  right  of  property,  how  conducted,  &c.  173  to  176. 
(See  Claimant.) 

when  execution  to  be  recalled,  and  how,  125.  133. 

when  a  venditioni  exponas  may  issue,  &c.  141 . 

sale  on;  maj'  be  made,  though  both  parties  to  the  execution  die  after 
the  levy,  154;  how  sale  to  be  advertised,  and  form  of  advertisement, 
154,5  note  8;  in  attachment  is  made  as  in  other  cases,  229;  the  pro^ 
perty  must  not  be  sold  in  amass,  155;  need  not  be  made  if  the  pro^ 
perty  will  be  greatly  sacrificed,  ib.;  penalties  &c.  if  justice  or  con- 
stable purchases,  ib.;  effect  of  combinations  at,  by  purchasers,  to 
prevent  competition,  ib.;  will  be  good,  though  made  on  the  young- 
est of  two  executioKiSj  164;  when  property  of  a  partnership  is  levied 
on  to  satisfy^  thc,<!ebt  of  one  partner,  375. 

what  title  the  purchaser  acquires  by  a  sale  on,  156. 

efiect  of  the  purchaser  leaving  the  goods  in  the  possession  of  the  de- 
fendant, 319. 

against  goods  and  body;  when  it  may  be  issued  generally,  ib,;  form 
of  affidavit  in  such  case,  140;  cannot  be  issued  against  an  executor 
or  administrator,  139;  nor  against  a  person  privileged  from  arrest, 
lb.;  nor  while  a  levy  upon  goods  remains  undisposed  of,  151. 

horo  executed;  when  the  true  name  of  the  defendant,  and  the  one  in 
the  writ  or  judgment,  are  different,  167;  when  the  defendant  is 
privileged  from  arrest,  ib.;  the  constable  must  first  seek  for  goods, 
and  how,  166.  158;  what  doors  may  be  entered  or  broken  open, 
and  what  force  may  be  used  to  make  an  arrest,  167.  33;  duty  of 
the  constable  after  the  arrest,  167;  liability  of  the  officer  for  an  es- 
cape, 170,1.     (See  Escape.) 

arrest  on  execution  discharges  the  judgment,  167,8. 

when  to  be  returned,  157. 

fonn  of  returns;  to  execution  against  goods  and  chattels;  when  no 
property  is  found,  158;  alike  return  upon  an  execution  against  ex- 
ecutors or  administrators,  ib.;  when  part  of  the  amount  of  the  exe- 
cution is  made  by  levy  and  sale,  158,9;  when  a  levy  is  made  and 
part  of  the  goods  are  sold,  159;  when  a  levy  is  made,  and  goods 
not  sold  for  want  of  buyers,  ib.;  when  defendant  pays  the  amount 
of  execution,  160;  when  the  property' levied  on,  or  a  part  of  it,  is 
claimed  by  a  third  person,  ib.;  schedule  annexed  to  a  return,  160,1 ; 
when  goods  are  sold  on  a  venditioni  exponas,  161;  when  there 
is  a  levy  and  sale  of  a  leasehold  estate,  ib.;  suggestion  of  lands, 
162  note  14. 

to  execution  against  goods  and  Jjodi/;  when  neilher  goods  nor  body 
72 


562  FEE  llndex. 

Execution — continued. 

can  bo  IVmnd,  1G8;  when  the  dcft-ndant  is  taken,  1G9;  Avhcn  tho 

dolcndant  is  discliar<i;cd  by  the  emiiniissioner  of  insolvents,  ih.; 

when  tlie  defendant  is  siek,  ib.  when  tlie  deiendant  is  priviiegcd 

from  arrest,  i/j.   when  the  defendant  is  rescued  by  ibrce,  171 

note  0. 

how  money  collected  on,  must  be  demanded  of  ofheer,  and  its  j)ay- 

ment  with   penalty  enforced,  lG-1,5;     (See  Jualice  of  Ike  2^i!uce — 

Constah/e.) 

liability  of  constable  for  false  return,  for  hot  making  return,  or  for  not 

paying  over  money  collected  on,  272,3.  158.     (Sec  Constable.) 
priority  of:  when  two  executions  issued  against  same  debtor,  how 
preference  obtained,  163,4. 

if  priority  lost  by  delay  of  a  constable,  he  is  liable  therefor,  163,4. 
Exchange;  (Sec  SaJes:)  riglits  of  the  assignee  against  the  assignor,  when 
a  note  or  other  claim  is  exchanged  for  property,  213.  401. 
when  and  how  a  party  may  put  an  end  to  a  contract  of  exchange, 
and  recover  back  the  projjcrty  exchanged,  on  account  of  fraud  in 
quality,  or  a  false  warranty,  435.  439. 
Executors  and  Administrators.     (See  Administralurs  and  Executors.) 
Exempliiication  of  Record.     (See  Authentication  ofcojnes,  c^-f.) 
Exemption  from  Arrest;  who  are  privileged  from  arrest,  27  to  30.     (See 

A7'rcst.) 
Exjicnses.     (See  Fees  and  costs.) 
Express  and  implied  Promise;  what  is,  281,2. 
Extortion;  in  what  cases  money  or  property  paid  by,  may  be  recovered 

back,  282,3.     (See  Interest — Frauds.) 
Extra  work;  when  the  value  of  it  may  be  recovered,  and  when  not,  473,4. 

Factor;  may  sue  in  his  own  name,  17;  when  debts  due  from  the  factor,  or 
his  principal,  may  be  set  ofi',  443;  has  a  lien  on  goods  for  his  ad- 
vances, &c.  356. 

Falsehood;  which  will  render  a  person  guilty  of  it  liable  to  suit,  316,17. 

False  Pretences.     (See  Fraud.) 

False  Return.     (See  ConslaUe.) 

Father.     (See  Parent  and  Child.) 

Fear  of  Injury;  when  recognizance  to  keep  the  peace  may  be  required, 
and  proceedings  in  such  case,  495  to  498. 

Fees  and  costs;  of  justice:  items  of,  generally,  107,8;  for  appointment  of 
appraisers  of  decedent's  estate,  192;  in  relation  to  strays,  447;  when 
acting  as  coroner,  298;  (in  proceedings  between  master  and  appren- 
tice, the  same  as  in  other  cases,  Stat.  p.  65,  Sec.  12;)  how  recover- 
ed in  civil  cases,  1 10,1 1 ;  how  recovered  in  criminal  cases,  111,12. 
justice  must  set  up  a  table  of  his  fees  in  his  office,  108. 
payment  of,  may  be  refused  if  particulars  and  receipt  is  not  made  out 

when  requested.  111. 
of  constable:  items  of,  generally,  108,9;  for  attending  jury  trial,  98;  in 
relation  to  strays,  450,1 ;  for  keeping  live  stock  taken  on  execution, 
153;  in  proceedings  in  attachment,  229;  when  election  of  justice  is 
contested,  3 ;  for  advertising  a  township  election,  and  for  notifying 
township  officers  elect,  272;  (in  j)roceedings  under  the  statute  be- 
tween a  master  and  apprentice,  67a^  65,  Sec.  12;)  how  his  fees 
may  be  recovered  in  civil   cases,  110,11;   when   the  election  of 


Index.'\  FEE  563 

Fees  and  Costs,  of  a  Constable, — continued. 

a  justice  is  contested,  4;  how  obtained  in  criminal  cases,  112,13; 
not  entitled  to  fees  for  removing  goods  taken  on  execution,  153;  if 
the  items  are  not  returned  on  the  process,  the  constable  cannot  re- 
cover his  fees.  111. 
of  witnesses;  items  of,  103  and  n.  how  recovered  in  civil  cases,  1 10,11 ; 
when  the  election  of  a  justice  is  contested,  3 ;  how  obtained  in  crim- 
inal cases,  113;  in  civil  cases  the  witness  not  bound  to  attend  if 
he  demand  his  fees  of  the  officer  when  subpoena  is  served  and  they 
are  not  paid,  54,5;    entitled  to  fees  if  examined  though  not  sub- 
poenaed, o5.  109;  so,  if  subpoenaed  and  not  examined,  55. 
of  jury :  in  civil  cases  generally,  98;  for  sitting  at  a  coroner"'s  inquest, 
296;  trial  of  right  of  property  taken  by  sheriff,  and  how  taxed  and 
paid,  470;  (in  proceedings  between  a  master  and  apprentice,  Slat. 
]).  65,  sec.  12;   in  proceedings  in  forcible  entry  and  detainer,  Stat. 
2).42\,sec.  20.) 
of  arbitrators,  and  how  taxed  and  recovered,  109,10. 
of  freeholders  and  appraisers,  clerk,  and  printer,  in  matters  rela- 
ting to  strays,  453.  447.  450. 
when  the  law  requires  an  officer  to  do  an  act  and  is  silent  as  to  fees, 

no  fees  can  be  charged  272. 
security  for,  may  be  required  of  plaintiff  when  a  non-resident  of  the 

county,  27. 
when  security  may   be   required  from  an  administrator  or  executor 

of  a  sister  State,  192. 
the  costs  of  each  party  must  be  made  out  and  taxed  separately,  109. 
what  are  the  costs  of  the  plaintiff,  and  those  of  the  defendant,  1 10. 
what  costs  must  be  inserted    in   the  judgment    and  execution,  and 

what  indorsed  on  the  writ,  109. 
each  party  is,  in  general,  liable  for  the  costs  he  makes,  though  judg- 
ment is  rendered  in  his  favor,  110. 
separate  suits  may  be  brought  therefor,  1 10,1 1. 
who  liable  for:    when  party   brought  up  to  keep  the  peace  is  dis- 
charged, 1 13.  497,8;  in  jury  cases  generally,  97,8. 
in  proceedings  against  and  for  apprentices,  199,200. 
when  justice  has  power  to  fine,  or  suit  is  brought  for  a  penalty,  1 12. 
in  suit  against  an  administrator  or  executor,  193. 
when  suit  is  in  the  name  of  one  person  for  benefit  of  another,  216. 
when  there  is  a  trial  of  right  of  property  taken  by  a  constable,  174; 

or  by  a  sheriff,  4G9;  or  a  constable,  on  an  attachment,  222. 
in  proceedings  in  attachment  against  the  garnishee,  226,7. 
when  a  bank  sues  drawers,  makers,  or  indorsers,  separately,  264. 
when  sureties  pay  costs,  33  1 .  400.  398. 
when  an  infant  sues  or  is  sued  by  guardian,  349. 
in  suits  upon  negotiable  instruments,  398.  400.     (Sec  Bill  of  Ex- 
change — Promissory  Note — Negotiable   Bond  — Accommodation 
Pajjcr.) 
in  procx;cdiiigs  against  the  father  of  a  bastard  child,  1 13. 
in  proceedings  relating  to  strays  and  drifts,  449,50.  452,3. 
constable  or  private  person  who  pursues  a  fugitive  from  justice  may 
recover  compensation  from  county,  1 12,13;  but  in  such  case  there 
must  be  a  legal  charge  made  against  the  accused,  1 13. 
how  affected  by  tender  of  debt  or  damages  Ixjfore  or  after  suit,  468 
to  462.     (See  Tender.) 


564  K  a  R  [Index. 

Females;    (See  Apprenlices  —  Infants  —  Husband  and  Wife;)  privileged 

from  arrest  for  debt,  &c.  30. 
Fences  cannot  be  taken  on  execution  as  chattels,  147. 

amount  of  damages  assessed  l)y  viewers  of,  may  be  contested,  467. 
Fieri  Facias;  what,  140.  (See  Eaccnlion.) 
Fighting;  when  prosecution  to  be  commenced  for,  495;  proceedings  for, 

494,5  note  1. 
Filing  Papers,  Writings,  &c.;  what  contracts  &c.  upon  which  suit  is  bro't, 
must  be  fded  with  and  indorsed  by  justice,  and  retained  by  him, 
40;  such  pajiers  and  depositions,  &c.  must,  on  appeal,  be  transmit- 
ted to  court,  125. 
Final  Process;  what  is  so  called,  IG  note  4. 

Finder  of  Property;  his  rights,  liabilities  and  duties  in  relation  to  goods 
found,  239,40. 

has  in  general  no  lien,  but  may  sue  for  his  charges,  355;  the  owner 
is  entitled  to  them  on  demand,  4;hough  sold  by  the  finder,  425.  23. 

when  innocent  holder  from  finder  of  negotiable  instrument  can  re- 
cover on,  and  when  not,  418.  420;  when  the  owner  thereof  cannot 
sue  on,  418.  420. 

rights  of  parties  to  a  lost  bank  bill  or  check,  420. 

right  of  owner  when  half  of  bank  bill  is  lost  by  mail,  419. 
Fines.  (See  Penalties — Assault  and  Ballcry — Fighting — Challcngivg  to 

Fight — Ajfrays.) 
Fixtures;  when  erected  by  a  tenant,  cannot  in  general  be  removed  by  him, 
147;  exceptions  to  this  rule,  zT*. 

when  they  may  be  levied  on  and  sold  as  goods  and  chattels,  ih. 
Forcible  Entry  and  Detainer;  in  what  cases  it  may  be  brought,  301,  with- 
in what  time,  when,  and  before  whom,  301. 

notice  to  leave  the  premises,  in  what  cases,  when  and  how  given,  ib.; 
form  of  such  notice,  307;  effect  of  not  giving  it,  as  to  costs,  303, 
and  note  5. 

complaint  of  plaintiff,  requisites,  and  form  of,  302.  308,9;  when  to  bo 
filed,  301. 

security  for  costs,  when  required,  302;  form  of  bond  for,  309. 

when  a  venire  for  a  jury  to  issue,  and  requisites  and  form  thereof  302. 
310;  how  mistakes  in  the  service  thereof,  *S.:e.,  waved,  303. 

when  a  summons  to  the  defendant  to  issue,  and  requisites  and  form 
thereof,  and  of  the  return,  311.  302. 

how  to  proceed  when  the  justices  or  parties  fail  to  attend  at  trial,  303. 

for  what  period  the  cause  may  be  adjourned,  303. 

jury,  how  ompanneled  with  talesmen,  and  what  challenges  allowed, 
303. 

against  a  tenant;  effect  of  not  giving  notice  to  leave,  303  and  note  5; 
plaintiff  should  produce  the  lease,  ib.;  defendant  cannot  dispute  the 
plaintiff's  title,  304;  lease  not  in  writing,  when  good,  304. 

against  a  purchaser  on  execution;  what  the  plaintifi'  should  prove, 
304;  how  sheriff 's  deed  to  be  proved,  and  its  effect,  304;  when 
possession  of  the  defendant  to  l>e  shown,  305. 

against  an  occupier  vnthout  any  color  of  title:  what  title  the  plain- 
tifi'  must  prove,  306;  what  defence  may  be  set  up  against  the  plain- 
tiff, ib. 

verdict  of  the  jury,  what  it  should   contain,  306,7;  forms  of,  311,12. 

judgment  of  justices,  how  to  be  given,  307.  303  n.  5;  forms  of,  313; 
no  appeal  allowed,  307. 


Index.l  FRA  5G5 

Forcible  Entry  and  Detainer, — continued. 

no  certiorari  allowed  after  ten  days,  307;  effect  of  granting  it,  ii. 

writ  of  restitution,  when  to  issue,  and  form  thereof,  307.  313. 

forms  of  docket  entries,  314,15. 

costs  in,  107,8.     [Sfat.  421,  ^20.] 
Foreign  Attachment.    (See  Attachment  against  dehlors.) 
Foreign  Judgment,  how  it  must  be  authenticated,  79,80. 
Foreign  Laws;  effect  of  a  certificate  of  an  insolvent  debtor  procured  in  an- 
other state  or  country,  30. 

their  effect  upon  the  rate  of  interest  charged  upon  a  claim  payable  in 
another  state  or  country  and  sued  here,  351.     (See  Currency.) 
Forfeiture.     (See  Recognizance — Bail — Penalties.) 
Forfeiture  of  the  Condition  of  a  Bond.    (See  Bond.) 

Forgery.   (See  Alteration — Counterfeit  money.)  The  rights  of  the  assignee 
against  the  assignor  when  the  note  &c.  is  forged,  214.395.  417,18. 

the  innocent  holder  of  a  genuine  note,  bond,  or  bill,  which  is  indorsed 
by  forgery,  cannot  recover  upon  it,  418. 

acceptor  of  a  forged  bill  of  exchange  is  liable  on  his  acceptance,  ib. 

indorser  of  a  forged  note,  bond,  or  bill,  liable  on  his  indorsement,  ih. 

rights  of  parties  when  a  bank  check  is  forged  or  altered,  420. 
Former  Recovery.     (See  Judgment.) 

Forms.     See  Entries  on  the  ducket — Summons — Capias — Warrant — Ex- 
ecution— Scire  facias — Bail — Recognisance — Oalhs  4*  affirmations — 

Affidavit — Bond — Contract — Deed — Bill  of  sale — Power  of  aitor7iey — 

Mortgage—  Will,  cf-c. 
Frauds,  and  Fraudulent  Misrepresentations;  when  a  person  may  sue  an- 
other for  a  ftdsehood,  316,17. 

when  a  person  is  liable  for  misrepresenting  the  pecuniary  circum- 
stances of  another,  10.316;  or  for  transferring  a  void  note,  10;  or 
for  misrepresenting  the  pecuniary  circumstances  of  a  debtor  when 
transferring  a  claim  to  a  third  person,  212. 

as  to  the  quality  Sj-c.  ofthinss  sold:  what  will  amount  to  a  fraud,  432 
to  436.317;  damages  in  such  cases,  433;  the  buyer  may  tender 
back  the  article,  and  recover  what  he  paid  or  delivered  in  exchange, 
and  when,  432.  435;  the  plaintitfmust  prove  the  defect  in  the  qua- 
lify, 440;  in  a  suit  by  the  seller  for  the  price,  the  defendant  may 
reduce  the  recovery  by  showing  the  fraud  and  defect,  440.  432. 

to  defeat  creditors:  when  conveyance  by  debtor  is  void  as  against  his 
creditors,  318;  conveyance  for  the  benefit  of  one's  self  is  void, /^. 
so  when  c(jnveyance  is  not  recorded,  i/;.  so  a  conveyance  by  an  in- 
solvent after  his  ap[)lication  for  relief  under  the  insolvent  law,  ih. 
und(;r  what  circumstances  void  when  debtor  retains  goods  sold  or 
moi-tgaged,  ib.  or  when  purchaser  on  an  execution  leaves  the  goods 
witli  the  debtor,  319;  or  when  a  gift  is  made  by  a  jjarent  to  a 
child,  319,20;  when  a  sale  or  conveyance  is  fraudulent,  it  is  void, 
though  the  buyer  paid  full  price  and  took  possession,  320;  is  not 
void  as  Ijctween  the  parties  to  it,  ib.  when  purchaser  from  the 
fraudulent  buyer  will  hold  the  property,  320.  425;  property  may 
be  transferred  so  as  to  give  some  creditors  a  preference,  320. 

what  concealments  from  a  surety  will  be  deemed  fraudulent,  and  dis- 
charge him,  327. 

if  a  buyer  induces  a  sale  by  false  pretenses  or  fraud,  when  the  goods 
may  Ik;  recovered  back,  425. 

master,  in  general,  liable  for  fraud  of  his  servant, apprcntice&c.  21,2. 


5G6  HAN  \Inde£. 

Frauds,  Statute  of.    Bcc  Frauds — Surchj — Contract — Adminislraloj's  aiid 

executors. 
Freeholder,  in  what  townsliip  or  county  he  may  bo  sued,  25,G. 
Freight.     Sec  Carrier  of  goods. 

Freight  Boats.     Sec  Carrier  of  goods — Boats  on  canal. 
Fresh  Pursuit,  what,  .36  n.  11. 
Fugitive;  who  may  pursue,  and  where,  112.483;   fees  for  arresting  one 

charged  with  crime  who  removes  from  county,  1 13.     (See  Rescue.) 
Furniture;  what  property  exempt  from  execution,  145,6. 

Gaming;  action  cannot  be  brought  to  recover  a  wager  or  bet,  288.     (Sec 

Stat.  426,7.) 
Garnishee,  who  is  so  called,  218. 
Gift;  promise  of  gift  not  binding,  288. 

when  delivered,  cannot  be  recovered  back,  nor  compensation  for  it,  ib. 
by  parent  to  child,  when  void,  as  against  creditors,  319,20. 
Gleaning;  one  who  enters  to  glean  in  another"'s  field  is  a  trespasser,  464. 
Goaler.     See  Jailor. 

Gold  Coin,  which  is  a  legal  tender,  456,7. 
Good  Behaviour,  Surety  for,  when  it  may  be  required,  and  proceedings  in 

such  cases,  495  to  498. 
Grace,  Days  of.     See  Daijs  of  grace. 

Grantor  and  Grantee,  what  parties  to  a  deed  arc  so  designated,  210  n.  1. 
Guaranty;  (see  Sureties;)  is  an  undertaking  that  a  certain  stipulation  will 
be  performed  by  another  person,  321. 
it  will  be  void  under  the  statute  of  Frauds  if  not  in  writing,  ib.   what 

undertakings  come  within  the  statute,  and  what  do  not,  322,3,4. 
it  will  be  void  unless  there  is  a  sufficient  consideration  for  it,  325. 

this  rule  illustrated,  325,6. 
what  is  a  sufficient  agreement  in  writing,  with  instances,  326,7,8. 
the  guarantor  will  be  discharged  if  the  guaranty  was  obtained  by  con- 
cealing the  extent  of  the  risk,  329,  or  by  the  guarantee  giving  fur- 
ther time  to  the  debtor,  ib.  or  by  the  guarantee  failing  to  sue  the 
debtor  after  notice  in  writing  from  the  guarantor  to  do  so,  ib.  or  by 
guarantee  parting  with  property  received  to  secure  the  debt,  330,1. 
or  by  neglecting  to  make  demand  of  the  debtor  an  unreasonable 
time,  328.  409.  or  by  neglecting  to  give  the  guarantor  notice  of  the 
nonpayment  by  the  debtor,  327.  409. 
the  rights  and  remedies  of  guarantor  against  the  debtor,  330,1,2. 
Guardian.    Sec  Infants — Parent  and  child. 

may  bind  out  his  ward  as  an  apprentice,  and  how  long,   195,6. 

must  protect  the  ward  during  his  apprenticeship,  197;  proceedings  by 

guardian  for  benefit  of  apprentice,  against  the  master,  197,8,9. 
when  his  power  as  guardian  ceases,  333,4. 

extent  of  hi-^  power  over  the  person  and  property  of  his  ward,  333. 
how  he  is  to  sue  and  be  sued,  and  his  general  duties  and  liabilities, 

333,4. 
when  liable  for  costs  of  suit  prosecuted  by  him  as  guardian,  349. 
parent  may  appoint,  in  his  will,  518. 
form  of  such  appointment  in  a  will,  519. 
Hamilton  County:  (See  Lien:)  witnesses  attending  in  more  than  one  crim- 
inal case,  allowed  but  one  dollar  per  day,  109  n.  2. 
Hand-writing,  of  attesting  witness  to  an  instrument,  when  it  must  be  prov- 
ed, 83,4. 
of  the  maker  of  a  written  instrument,  must  in  general  be  proved  be- 


Index.]  II  u  s  567 

Hand^friting — continued. 

fore  the  instrument  can  be  received  in  evidence,  80;  exceptions  to 
this  rule  81.  (See  Evidence.) 
cannot  prove  the  handwriting  by  a  witness  who  only  knows  it  from 
a  mere  comparison,  84. 
Hearsay  Evidence.  (See  Evidence.) 

Heirs;  may  sue  for  injuries  to  the  land,  done  after  the  decease  of  their 

ancestor,  18. 

when  they  niav  be  witnesses  for  their  ancestor's  estate,  and  when 

not,  60. 

Highways;  general  rule  as  to  turning  out  where  two  teams  meet,  256  n.  2. 

right  of  the  owner  of  land  through  which  a  highway  runs,  and  for 

what  injuries  done  thereto  he  may  sue,  465. 
when  impassable,  a  traveler  has  right  to  go  on  the  adjoining  land,  464. 
Hire  of  Articles,  or  Goods;  the  rights,  remedies,  and  liabilities  of  the  hirer 
and  letter  of  property,  244  to  246. 
when  rights  of  the  letter  must  appear  in  writing  and  be  recorded,  245. 
Hiring  and  Service.  (Sec  Woi'k  and  Labor.) 
Hogs.  (See  Strays.) 
Holder  of  promissory  note,  bill  of  exchange,  or  negotiable  bond,  who  is 

so  called,  382,3. 
Horses;  (as  to  taker  up  of  a  stray  stoned  horse,  see  Strays.) 

what  concealment  of  defects  or  misrepresentation  of  quality  of,  will 
render  the  seller  liable  to  action,  432  to  435.  437;  remedy  of  buyer 
in  such  case,  434,5. 
warranty  of,  on  a  sale,  that  the  seller  is  the  owner,  437,8 :  remedy 

of  buyer  if  seller  had  no  title,  436,7. 
what  amounts  to  a  warranty  of  quality,  438;  must  be  made  at,  or 
form  a  part  of  the  terms  of  the  sale,  438;  if  made  after  the  sale,  is 
void,  ib.;  to  what  defects  warranty  of  soundness  extends,  ib.;  when 
the  buyer  may  return  the  horse  and  recover  back  the  price,  and 
Avhen  not,  439. 
remedy  against  the  seller  when  there  is  both  fraud  in,  and  warranty 
of,  the  quality  &c.  43 1 ;  damages  upon  a  breach  of  a  warranty, 
433,4.  439. 
if  taken  by  buyer  on  trial,  when  to  be  returned,  440. 
House.     (See  Building,  contract  for;  and  as  to  breaking  open  doors  to 

serve  civil  or  criminal  process,  see  Breaking  open  doors.) 
Householder;  in  what  township  or  county  he  may  be  sued,  25,6;  of  one 

county,  when  he  may  be  sued  in  any  other,  26. 
Husband  and  Wife;  rights  of  husband  in  his  wife's  land,  336;  to  whom  it 
goes  on  his  or  her  decease,  ih.  ellect  of  his  conveyance  or  lease  of 
her  lands,  ib.  to  whom  the  crops  thereon  go  on  his  death,  ib. 
effect  of  conveyance  of  land  to  husband  and  wife,  ib. 
rights  of  the  husband  in  leases  belonging  to  the  wife,  336,7;  to  whom 

they  go  on  his  or  her  decease,  ib. 
rights  of  the  husband  in  debts,  &c.,  due  the  wife,  337;  he  alone  can 
transfer  a  negotiable  instrument  made  to  her  before  the  marriage, 
391 ;  to  whom  the  debts,  &ic..  go,  on  his  or  her  decease,  337;  wiieii 
an  action  on  such  debts  is  barred  by  the  statute  of  limitations,  360,1, 
rights  of  the  husband  in  the  personal  property  of  the  wife,  338. 
his  liability  for  debts  owing  and  injuries  done  by  lier  before  the  mar- 
riage,  ib.  clfcct  of  his  or  her  death  upon  the  liability  of  each  in  such, 
cases,  ib. 


568  INK  [Index. 

Husband  and  Wife — continued. 

when  he  is  liable  for  necessaries  and  other  things  furnished  her,  338,9. 
of  notice  not  to  trust  her,  and  its  effect,  ib. 

when  he  is  liable  for  crimes  and  injuries  connnitted  by  her  during  the 
marriage.  339. 

when  she  can  act  without  her  husbantl,  340.  72,3. 

when  her  admissions  arc  evidence  against  him,  72,3. 

when  they  are  incompetent  witnesses  for  or  against  each  other,  340,1. 

slie  cannot  be  arrested  for  a  debt,  &c.,  141. 

when  they  must  join  as  plaintills,  341. 

when  he  must  sue  alone,  342. 

when  she  may  sue  alone,  iJj. 

when  they  may  join  or  not,  as  they  please,  343. 

who  must  sue  on  the  (U.'ath  of  husband  or  wife,  343,4. 

the  effect  of  their  death  upon  suits  pending,  ih. 

when  they  must  be  joined  as  defendants,  344. 

when  she  may  be  sued  alone,  ib. 

who  to  be  sued  upon  the  death  of  both,  and  its  eifect  upon  suits  pend- 
ing, 345. 

effect  of  mistake  or  omission  in  making  them  parties,  ib. 

effect  of  marriage  of  a  female  upon  suit  pending  by  or  against  her,  ib. 

claim  due  them  cannot,  in  general,  be  joined  in  one  action  with  a  debt 
due  to  the  husband,  14. 

Ignorance,  is  no  excuse  for  not  properly  performing  -what  one  undertakes, 

241.     (See  Mistake.) 
Illegal  Consideration;  what  is,  288,9;  promise  founded  on  it  void,  ih. 
if  paid,  it  cannot  be  recovered  back,  289. 

effect  of  part  of  the  consideration  being  illegal  and  part  good,  290. 
Illegal  Contracts;  are  such  as  tend  to  promote  crime  or  immorality,  288; 

(for  effect  thereof,  see  Contract.) 
Illegitimate  Children.     (See  Bastards.) 

Immorality;  contract  which  encourages,  will  not  be  enforced,  288;  instan- 
ces of  the  application  of  this  rule,  288,9. 
Implied  Promise  or  Contract;  what  is,  282. 

Imprisonment;  when  defendant  may  avoid  a  contract  on  account  of  its  hav- 
ing been  made  while  he  was  imprisoned,  284,5. 
when  and  how  long  it  excuses  a  party  from  bringing  an  action  on 
claims  due  him,  360,1. 
Incompetent  Witness.     (See  Witness.) 

Indentures  of  Apprenticeship.     (See  Apprentice  and  Apprenticeship.) 
Indorsement;  liability  of  the  assignor  of  a  claim  not  negotiable  by  writing 
his  name  on  it  when  he  delivers  it,  213,14.  409.     (See  Assignment 
of  Claims  not  Negotiable.) 
effect  of  a  third  person  indorsing  his  name  on  a  note  when,  or  after 

it  is  made,  325.  327. 
of  negotiable  instruments,  how  made,  and  the  rights  and  liabilities  of 
the  parties  thereon,  380.  (See  Promissory  Note — Bill  of  Exchange 
— Negotiable  Bond.) 
Indorser  and   Indorsee;  who  are  so  called,  382,3.     (See  Assignment  of 
Claims  not   Negotiable — Promissory  Note — Bill   of  Exchange  — 
Negotiable  Bond.) 
Infants;  who  are  deemed,  34G;  on  what  day  they  arc  of  age,  157  n.  12. 
when  their  age  excUules  them  from  testifying,  58;  in  such  case  what 
thev  said  is  not  evidence,  ib. 


Index.]  I N  T  569 

Infants — continued. 

when  liable  for  necessaries  furnished  them  and  when  not,  346,7. 

when  parents  liable  for  necessaries  furnished  them,  and  when  not,  365. 

what  contracts  of  an  infant  arc  void,  347,8. 

for  what  injuries  liable,  348. 

how,  by  whom  &c.  they  may  be  apprenticed,  195,6.  (See  Apprentice.) 

how  they  may  contirm  a  voidable  contract,  348. 

liability  of  a  person  who  contracts  with  them,  348,9. 

how  they  should  sue  and  be  sued,  349.     (See  Parent  and  Child.) 

how  liable  for  costs,  349. 

when  claims  in  favor  of  are  barred  by  the  statute  of  limitations,  365. 

at  what  age  they  may  marry,  363 ;  cannot  marry  without  consent  of 
parent  &c.  ih.  how  justice  should  be  satisfied  thereof,  364. 

parent  cannot  lease  land,  or  recover  rent  or  other  debts  of,  365  j  but 
may  sue  for  injuries  done  to  his  child,  Ih. 

parent  entitled  to  earnings  of  child,  ih.  but  may  permit  his  child  to 
contract  for  his  services,  ih. 

the  rights  and  powers  of  a  guardian  over  the  person  and  property  of 
his  ward,  333,4.  195.     (See  Guardian.) 
Innkeepers;  who  are  deemed  such,  261 ;  who  are  guests,  ih. 

liability  for  goods,  baggage  &c.  of  guests  generally,  259  to  262. 

when  exonerated  from  liability  for  the  loss  of  goods  of  guests,  263. 

must  receive  such  guests  as  he  can  accommiodate,  261. 

has  a  lien  on  the  person  and  goods  of  his  guests  for  bill,  ih. 

has  a  lien  on  a  horse  though  left  by  a  thief,  355,6. 

if  guest  behaves  rudely  he  is  a  trespasser,  464. 
Inner  Doors.     See  Breaking  ojjen  Doors. 
Inquest  of  Coroner.     See  Coroner. 

Insane  Persons,  and  Insanity;  when  plea  of  insanity  is  a  good  defence 
against  a  contract,  and  who  to  prove  it,  284. 

within  what  time  a  claim  in  favor  of,  must  be  sued,  360,1. 
Insolvent  Debtor;  when  privileged  from  arrest,  30.  139. 

of  another  State,  when  privileged  from  debt  and  arrest,  30. 

copy  of  his  certificate  should  be  returned  by  constable  with  the  pro- 
cess, 30;  form  of  such  return,  169. 

when  his  assignment  or  sale  of  property  is  void,  318;  when  his  con- 
tracts are  void,  289. 

negotiable  instruments  due  him  may  be  indorsed  by  the  commissioner 
of  insolvents,  391. 
Insolvent  Laws  of  other  States;  hov/  they  affect  the  debt  of  the  insolvent 

when  he  comes  to  this  State,  30. 
Installmenls;  how  interest  to  be  computed,  352. 

Interest;  what  rate  of  interest  may  be  contracted  for  ruid  recovered,  350; 
whether  usurious  interest  can  be  recovered  back,  351 ;  usurious  in- 
terest taken  by  a  bank  avoids  the  contract,  264. 

what  rate  recoverable  on  contracts  made  or  payable  in  other  States, 
351. 

may  be  calculated  from  the  Uma  a  claim  is  due  if  contract  is  silent  as 
to  interest,  351. 

when  it  commences;  on  a  note  payable  on  demand,  351 ;  on  a  due  bill, 
ih.  on  a  merchant's  or  other  account,  ih.  on  cash  advances,  351,2; 
on  uncertain  damages  or  amounts,  351. 

how  computed;  when  payment  is  made  before  the  debt  is  due,  352;  or 
e.xceeds  or  is  less  than  the  interest,  ih.  example  of  calculation  353 
note  1;  when  interest  upon  interest  may  be  comi)uled,354. 
73 


570  J  o  I  [Index. 

Interest — continued. 

in  what  cases  interest  may  be  stopped  by  tender  of  money,  458.  455. 
when  payment  of  interest  on  a  debt  barred  by  the  statute  of  limitations 
will  revive  the  debt,  36  1,2. 
Interlineation;  effect  of  fraudulently  altering  an  instrument  after  it  is  made, 

292.416,17. 
Intermediate  Parties  to  a  Negotiable  Instrument;  who  so  called,  411  n.  2. 
Interpreter;  form  of  oath  to,  when  the  witness  docs  not  understand  tho 

English  language,  94. 
Inventory;  constable  must  make  out  schedule  of  goods  levied  upon  and 
sold  on  execution,  156;  form  thereof,  160;  penalty  for  neglect,  156. 
appraisement  and  inventory  of  property  attached,  how  made  out,  219  ; 
form  thereof,  232. 
Irregularity.     (See  Warrant — Appearance — Mistake — Execution.) 

Jailer;  if  not  at  prison  when  constable  takes  prisoner  there,  and  there  is 
no  one  to  receive  prisoner,  the  jailer  will  be  liable  for  escape,  167. 
Jews;  how  oath  to  be  administered  to,  58. 

Joinder  of  diflcrent  Causes  of  Action  in  one  Suit;  what  causes  of  action 
may  be  joined  in  one  suit,  13. 

•when  the  plaintiffs  claim  is  entire,  he  can  have  but  one  suit,  104. 

each  officer  or  witness  must  sue  separately  for  their  fees,  111. 

when  the  property  of  different  persons  is  taken  or  injured,  they  must 
sue  separately,  19;  but  not  where  property  is  owned  jointly, /Z*. 
Joint  Promise  or  Contract;  (as  to  contracts  made  by  and  with  partners, 
see  Partners  and  Partnership;  as  to  rights  &c.  of  sureties,  sco 
Surety;)  what  are  joint  promises,  and  what  are  joint  and  several, 
1 5  note  2. 

if  one  of  the  joint  promissors  or  promissees  die,  the  survivor  must 
sue  and  be  sued,  16.  19,20. 

cannot  join  in  same  action  a  claim  against  two  or  more  defendants 
with  a  claim  against  one,  14;  so,  cannot  set  off  a  joint  demand 
against  a  separate  debt,  or  a  separate  debt  against  a  joint  demand, 
443,4. 

how  to  sue  when  two  or  more  joint  promissors  reside  in  different 
townships  or  counties,  26. 

cannot  sue  them  by  attachment  unless  all  have  absconded  or  are  non- 
residents, of  the  county,  210. 

effect  of  omissions  or  mistakes  in  making  parties  to  the  action,  19,  23. 

release  or  discharge  of  one,  will  discharge  all,  187. 

when  admissions  of  one  joint  promissor  are  evidence  against  all,  73; 
such  admissions  will  revive  a  debt  barred  by  the  statute  of  limita- 
tions, 362. 
Joint  Wrongdoers;  how  sued  when  they  reside  in  different  townships,  26. 

claim  against  all  and  a  distinct  claim  against  one  cannot  be  joined  in 
the  same  action,  13;  but  distinct  injuries  by  all  may,  23. 

they  may  be  all  sued  separately  and  judgments  had  against  each,  but 
only  one  satisfaction,  23,  and  note  13. 

liability  of  promoter  of  injury,  23. 

release  or  discharge  of  one,  will  discharge  all,  187. 

declarations  by  one,  when  evidence  against  all,  73. 

when  sued  separately,  are  competent  witnesses  for  or  against  each 
other,  60. 

judgment,  when  some  of  the  defendants  are  guilty  and  some  not,  23. 


Lidex.]  JUD  671 

Joint  Wrongdoers — continued. 

they  cannot  sue  each  other  to  recover  back  a  portion  of  the  money 
which  they  have  been  compelled  to  pay  for  their  misconduct,  23. 
Journeymen;  for  what  contracts  entered  into  and  injuries  done  by  them, 
their  employers  are  liable,  21,2. 

in  what  cases  they  cannot  be  examined  as  witnesses  for  their  employ- 
ers, 59,60. 

effect  on  their  compensation  if  they  abandon  the  service  before  their 
term  of  service  expire,  471 ;  or  are  dismissed,  ih. 
Judge;  duties  of  an  associate  judge  on  the  trial  of  a  contested  election  of  a 
justice,  2,3. 

is  priviledged  from  arrest  for  debt  &c.  and  when,  29.  139. 
Judges  of  an  Election;  form  of  oath  to,  299. 
Judgment;  the  difference  between  an  irregular  and  a  void  judgment,  103,4. 

on  the  merits  of  a  cause;  form  of,  for  the  plaintiff,  105.  117;  for  the 
defendant  and  for  costs,  106.  118;  for  the  defendant  for  a  balance 
due  him,  106;  effect  of,  as  to  bringing  a  new  action  for  the  same 
cause,  104,5;  is  only  evidence  against  the  parties  themselves,  and 
those  who  claim  under  them  as  assignees  &c.  104. 

by  default;  form  of,  117;  may  be  rendered  in  absence  of  the  defend- 
ant, 45;  how  it  may  be  set  aside  and  a  new  trial  had,  ih.;  form  of 
docket  entry  in  such  case,  117. 

ofnon  suit;  form  of,  103;  when  to  be  rendered,  and  effect  of,  as  to 
bringing  a  new  action,  102,3. 

of  discontinuance;  i'ovm  o^,  103;  when  to  be  rendered,  and  effect  of, 
as  to  bringing  a  new  action,  ih. 

fees  for  entering  various  judgments  or  satisfaction  thereof,  108. 

whose  costs  to  be  entered  in  the  judgment,  and  whose  to  be  indorsed 
on  the  execution,  109. 

hy  confession:  form  of,  121,2;  may  be  rendered  for  two  hundred  dol- 
lars, 6;  no  appeal  lies  therefrom,  123.  (See  Warrant  of  At- 
torney.) 

on  a  scire  facias;  forms  of,  on  recognizance  of  appeal,  128,9;  on  re- 
cognizance for  stay  of  execution,  137;  on  transcript  or  docket  of  an- 
other justice,  181.  137;  against  a  constable  and  sureties,  275.  277. 

on  trial  of  right  of  property  taken  by  a  constable,  form  of,  1 80;  when 
taken  by  a  sheriff,  form  of,  470. 

on  trial  of  right  of  claimant,  in  attachment,  222  notes  3,4.  236. 

in  attachment,  forms  of,  234,5. 

in  actions  of  forcible  entry  and  detainer,  form  of,  313;  when  for  costs 
in  such  case,  and  when  not,  313  n.  1.  307. 

for  a  fine,  form  of,  56.  GG. 

how  di.'icharged;  by  the  plaintiff  releasing  a  levy,  150;  by  seizure  of 
sufficient  goods  on  execution,  though  the  officer  wastes  them,  or 
their  proceeds,  151;  by  plaintiff  releasing  the  body  of  defendant 
after  his  arrest  on  an  execution,  171. 

general  effect  of;  when  rendered  for  the  value  of  goods  wrongfully 
taken,  payment  thereof  vests  the  ownership  of  the  goods  in  the  de- 
fendant, 12.  467;  when  such  suit  is  brought  by  the  person  in  pos- 
session of  tlie  goods,  owner  cannot  afterwards  sue,  22;  when  a  per- 
son has  but  one  entire  cause  of  action,  and  sues  for  and  recovers  a 
part,  98;  judgment  on  the  merits  satisfies  claim  itself,  185,  n.  1. 

money  paid  on,  liowever  unjust,  cannot  lie.  recovered  back,  104. 

what  defence  may  be  made  when  an  action  of  debt  or  scire  facias  is 
brought  on  a  judgment,  180. 


572  JUS  [Index. 

Judgment — conlinued. 

how  assigned,  211.     (Sec  Assignment,  of  claims  not  negotiahle.) 

against  a  township,  how  collected,  138  n.  1. 
Jurisdiction  of  Justice;  in  civil  proceedings;  in  general,  limited  to  town- 
ship, and  one  hundred  dollars,  5;  when  balance  claimed  docs  not 
exceed  one  hundred  dollars,  has  jurisdiction,  G.  384  n.  2;  in  what 
cases  co-cxtensive  with  the  county,  5.  25;  when  it  extends  to  more 
than  one  hundred  dollars,  G;  in  what  cases  a  justice  has  no  jurisdic- 
tion, 7,8.  26;  conseut  of  parties  will  not  give  jurisdiction,  8;  con- 
sequences of  proceeding  M'ithout  jurisdiction,  8. 

as  to  the  peison  sued;  freeholder  or  other  person  residing  in  one  coun- 
ty may  be  sued  in  any  other  county,  if  he  can  be  served  with  pro- 
cess, 25;  so,  a  person  who  is  neither  a  freeholder  nor  a  householder 
of  county  may  be  sued  in  any  township  thereof,  if  process  can  be 
served  on  him,  26;  but  a  householder  or  a  freeholder  of  the  county 
cannot  in  general  be  sued  in  any  township,  except  in  the  one  whore 
he  resides,  ib.;  exception  to  this  rule,  26,7. 

in  cases  against  a  constable  and  his  sureties  for  official  misconduct, 
272.275;  in  forcible  entry  and  detainer,  301;  when  the  docket 
must  show  a  case  for  the  special  jurisdiction,  122.  115. 

in  criminal  cases;  extends  to  the  county,  477,8.  (See  Penalties — 
Assault  and  Battery — Fighting — Affray — C/ial/enging  to  Jiglit. 

how  to  punish  for  contempts  and  disturbances  wliile  holding  court  278. 
Jury;  when  jurors  privileged  from  arrest,  29.  139. 

in  what  cases  allowed  in  civil  cases,  and  the  selection,  talesmen,  pro- 
cess, oath,  verdict,  proceedings,  &c.  95  to  98. 

when  and  how  summoned,  and  proceeding  of,  upon  complaint  against 
a  master,  for  the  protection  of  the  apprentice,  198,9;  like  ])roeeed- 
ings  by  master  against  apprentice  for  bad  conduct,  199.  200. 

at  coroner's  inquest,  how  summoned,  impannelcd,  sworn,  and  their 
duties  and  verdict,  with  forms,  293  to  295;  penalties  for  neglecting 
to  obey  the  venire  of  the  coroner,  296. 

in  an  action  of  forcible  cnlry  and  detainer;  when  venire  to  issue,  302. 
requisites  and  form  of  the  venire,  310;  for  what  may  be  challenged, 
303;  how  panel  fdlcd,  ih.;  form  of  oath  and  affirmation  to  jury, 
311 ;  what  they  should  find  by  their  verdict,  306,7;  form  of  their 
verdicts,  3 11,12. 

on  trial  of  right  of  property  taken  by  shcrifF,  form  of  venire  for,  468 
note  1 ;  panel  may  in  such  case  be  filled  by  talesman,  469;  form  of 
oath  and  verdict  in  such  case,  ib. 

fees  in  relation  to;  issuing  venire  for,  107;  service  of  venire  for,  108; 
swearing  jury,  ib.;  fees  of  jury  generally,  in  civil  cases  before  jus- 
tice, 98;  for  sitting  at  a  Coroner's  inquest,  296;  on  trial  of  right  of 
property  taken  by  sheriff*,  470;  in  proceedings  between  a  master 
and  his  apprentice,  Stat.  p.  65,  sec.  12;  in  proceedings  in  forcible 
entry  and  detainer,  Stat.  p.  421,  sec.  20. 
Justice  of  the  Peace;  number  in  each  township,  and  increased  or  dimin- 
ished, 1 ;  term  of  office,  1. 

when  and  how  elected — how  election  contested,  2,3. 

his  official  oath,  and  form  of  certificate  thereof,  3  note  2. 

when  he  must  transmit  to  the  township  clerk  the  date  of  his  com- 
mission, 4. 

form  of  his  official  bond,  4  note  3;  what  is  a  breach  of  its  condition 
for  which  his  sureties  are  liable,  165;  his  sureties  cannot  be  sued 
before  a  justice,  165. 


Index.]  LAN  573 

Justice  of  the  Peace — conlinucd. 

resignation  of,  and  when  the  office  is  vacant  by  absence,  4 ;  neglect  to 
give  bond,  &c.,  ib. 

what  must  be  done  \\\\\\  laws,  his  docket,  &c.,  when  his  office  be- 
comes vacant  by  death,  expiration  of  term,  or  otherwise,  178. 

may  preside,  in  the  absence  of  a  judge,  on  the  trial  of  a  contested 
election  of  a  justice,  3. 

what  relationship  to  parties  prevents  him  from  trying  a  cause,  26. 

jurisdiction  in  civil  cases,  5  to  8.     (See  Jurisdicliun  of  Justice.) 

how  to  open  and  certify  the  returns  of  an  election,  299. 

jurisdiction  in  criminal  cases,  477.  487.  491  to  498.  (See  Jurisdicliun 
of  justice — Affray — Penal  lies — Assault  and  halter  y  —  Fighting  — 
Challenging  to  fight,  6)-c.) 

may  arrest,  or  cause  an  arrest,  without  warrant,  and  when,  478. 

when  to  act  as  coroner  of  county,  293.     (See  Coroner.) 

when  he  may  appoint  a  constable,  and  how,  271. 

what  instruments  upon  which  judgment  is  rendered  must  be  filed,  in- 
dorsed and  retained  by  him,  40;  or  upon  appeal  sent  to  the  clerk  of 
the  coui-t,  125. 

effijct  upon  a  suit  of  his  unreasonable  delay  to  proceed,  46. 

may  certify  transcript  from  the  docket  of  an  absent  justice  in  his  pos- 
session, 79. 

how  to  decide  a  cause  when  the  testimony  conflicts,  102. 

may  punish,  and  how,  for  disturbances,  &c.,  while  he  is  trying  a 
cause,  278. 

when  he  may  be  proceeded  against  for  refusing  to  pay  over  money, 
and  how  it  should  be  demanded,  and  its  payment  with  penalties,  en- 
forced, 164,5;  in  such  case,  no  stay  of  execution  allowed,  131. 

liable  to  a  party  injured  for  official  negligence,  133;  so  for  delay  in 
issuing  execution,  138;  so  for  proceeding  without  jurisdiction,  8;  so 
for  issuing  process  against  the  body  when  he  knows  the  defendant 
lobe  privileged  from  arrest,  167. 

penalties  against,  for  purchasing  at  sale  on  execution  issued  by  him, 
155. 

ought  not  to  receive  money  on  a  judgment  while  an  execution  Is  in 
the  hands  of  an  officer,  164. 

must  keep  a  docket,  and  stray  book,  114.  454.     (See  Docket — Entries 
on  the  docket — Strays.) 
Keeping  the  Peace,  Recognizance  for;  when  it  may  be  required,  and  pro- 
ceedings in  such  cases,  495  to  498. 
Laborer;  for  what  contracts  entered  into,  and  injuries  done  by  a  servant, 
the  master  is  liable,  21,2. 

when  he  may  be  a  witness  for  his  master,  and  when  not,  59,60. 

compensation  of,  when  he  abandons  the  service,  or  is  dismissed  before 
his  term  of  service  expii'es,  471. 

is  liable  for  gross  negligence,  though  doing  the  work  gratis,  240,1. 
Lading,  Bill  of.     See  Bill  of  lading. 

Land.     See,  also.  Trespass  upon  land — Crops — Forcible  entry  and  detain- 
er— Landlord  and  tenant — Lease — Heirs. 

form  of  suggestion  that  the  defendant  has  lands,  when  to  be  made,  and 
the  effect  thereof,  163. 

what  is  included  in  the  term  land,  463. 

contract  for  purchase  of,  does  not,  in  general,  give  Iniycr  a  riglit  to 
take  possession,  nor  to  cut  timber,  464;  exceptions  to  tliis  rulr,  //;. 


574  L I E  [htdez. 

Landlord  and  Tenant.     (Sec,  also,  Forcihlc  entry  and  detainer.)     Interest 
of  landlord  or  tenant  not  aiU'ctcd  in  certain  cases  when  the  crop  is 
levied  upon  by  an  execution,  156. 
verbal  lease,  when  binding,  304. 

tenant  only,  and  not  the  landlord,  can  sue  for  a  trespass  upon  the 
leased  land,  465,G. 

but  landlord  may  sue  the  trespasser  for  trees  cut  down,  465. 
tenant  may  sue  his  landlord  for  entering  upon  the  leased  land  with- 
out license,  466. 

or  for  turning  him  out,  even  after  the  expiration  of  the  lease,  ih. 
rights  of  landlord  when  tenant  on  shares  abandons  the  crop,  474. 
tenant  cannot  dispute  the  title  of  the  person  under  whom  he  claims,  72. 

exception  to  this  rule,  ib. 
the  tenant's  estate  in  the  land  may  be  sold  by  constable  as  a  chattel, 
147;  form  of  return  to  execution  and  bill  of  sale  in  such  case,  161. 
what  buildings  erected  by  the  tenant  may  be  removed  by  him,  or  may 

be  sold  on  execution  as  his  goods,  147. 
landlord  entitled  to  crops  sown  by  tenant,  which  ripen  after  the  ex- 
piration of  the  lease,  466  n.  2. 
Larceny.     Sec  Stolen  properly. 
Lawyer.     See  Attorney  at  law. 

Leading  Questions;  what,  and  who  may  ask  tl)em,  63. 
Lease.     (Sec  Landlord  and  tenant.)     Form  of,  506. 
verbal  lease,  when  good,  304. 
by  a  guardian,  for  what  period  good,  333. 
by  a  husband,  of  his  wife's  land,  for  what  period  good,  336. 
parent,  unless  appointed  guardian,  cannot  lease  his  child's  land,  365. 
Ledger,  when  it  must  be  produced  on  trial,  190. 
Letter  of  Credit;  vi  proposition  to  guaranty,  not  sufficient,  326. 

what  is  a  sufficient  letter  of  credit  to  bind  the  writer,  326,7;  the  du- 
ties of  the  person  to  whom  it  is  addressed,  to  render  the  writer  re- 
sponsible, 328.  409. 
Letter  of  Goods,  who  is  so  called,  his  rights  and  remedies,  244. 
Levy.     See  Execution. 

License;  to  pass  and  repass  on  another's  land,  how  far  binding,  and  how 
revoked,  287.  463. 
in  what  case  marriage  license  must  be  obtained,  363. 
agreement  for  sale  of  land,  when  an  implied  license  to  the  buyer  to 
take  possession,  464. 
Lien;  what  is  meant  by  this  word,  355. 

possession,  in  general,  necessary  to  create  a  lien,  ih. 
when  it  exists  on  property,  it  cannot,  in  general,  be  taken  by  process 
against  the  owner  until  the  lien  is  satisfied,  by  tender  or  payment, 
148.220. 
of  the  tenant,  or  the  landlord,  upon  the  crop,  how  affiscted  by  an  exe- 
cution levied  on  the  crop,  156. 
of  a  bailor,  on  goods  deposited,  extent  and  nature  of,  240. 
of  a  borrower,  on  goods  borrowed,  for  extraordinary  expenses  incur- 
red about  the  goods,  242. 
of  a  carrier  of  goods,  for  freight,  extent  and  nature  of,  254. 
of  a  storage  merchant,  355. 

of  a  stage  proprietor,  on  the  baggage,  for  the  fare,  258. 
of  a  tavern  keeper,  for  bill,  and  extent  of,  261 ;  he  may  retain  horse, 
though  left  by  a  thief,  until  charges  of  keeping  are  paid,  366. 


Index ^  L  u  N  575 

Lien — continued. 

of  Mechanics:  on  an  article  they  have  worked,  355;  extends  to  tlie 
whole  entire  work,  ib.  does  not  exist  when  time  is  given  to  pay  tor 
work,  ib.  nor  after  parting  with  the  possession  of  an  article,  35G. 
cannot  sell  the  article,  if  it  belongs  to  the  employer,  upon  paying 
merely  for  the  work,  ib.  cannot  retain  the  article  for  charges  upon 
other  articles,  or  for  other  debts,  ib.  remedy  of  mechanic  when  the 
owner  or  others  wrongfully  take  the  article,  ib.  owner  cannot  sell 
the  article  so  as  to  destroy  the  lien,  ib.  (As  to  lien  of  mechanics 
and  furnishers  on  houses  and  buildings,  &:c.,  in  the  counties  of  Ham- 
ilton, Washington,  Montgomery,  Scioto,  Muskingum,  and  Knox, 
see  Chasers  Statuies,  2160,  and  3Sth  vol.  Local  Laws,  1 15.) 

of  factor,  or  general  agent,  or  commission  merchant,  for  his  advances 
&c.  to  his  principal,  356. 

of  seller,  (for  price,)  upon  goods  sold,  356,7;  exists  only,  in  general, 
where  the  purchaser  is  insolvent,  357;  seller  can  take  them  only 
while  on  their  way  to  the  buyer,  ib.  what  will  be  deemed  taking 
possession  in  such  case,  ib. 

when  a  lien  will  be  created  by  the  wrongful  act  of  a  servant  or  thief, 
&c.,  355,6. 

finder  of  goods  has  no  lien  for  charges,  355. 
but  may  recover  his  charges  by  suit,  ib. 

lien  is  divested  by  the  delivery  of  the  property  to  the  owner,  356. 
but  is  not  aflected  by  the  owner  selling  the  article,  ib. 

when  article  of  another  is  retained  on  account  of  charges,  it  cannot 
be  sold,  ib.  nor  retained  on  account  of  any  other  claim  or  demand, 
ib.     (See  Factor.) 

remedy  of  person  who  has  lien,  if  the  owner  or  other  person  takes  or 
injures  the  article  while  retained  on  account  of  the  charges,  356. 
Limitation  of  Actions;  within  what  time  civil  actions  must  be  brought,  358. 

at  tchat  period  the  time  limited  for  bringing  the  action  commences ;  not 
until  there  is  a  right  to  sue,  or  breach  of  contract,  359 ;  where  a 
bill  of  exchange  is  payable  after  sight,  ib.;  where  there  is  no  breach 
of  the  contract  until  a  demand  made,  ib.;  when  a  person  takes  or 
withholds  property  from  the  owner,  ib.;  where  there  is  a  running 
account,  ib.;  where  there  has  been  a  settlement  by  striking  a  bal- 
ance, 360;  where  a  wrong  or  injury  has  been  done  and  subsequent- 
ly discovered,  358.  360;  where  the  cause  of  action  arises  in  the 
lifetime  of  a  decedent  debtor,  or  afterwards,  360;  where  the  plain- 
tiff is  a  female  and  was  married,  or  was  an  infant,  or  was  insane, 
or  imprisoned,  when  the  cause  of  action  accrued,  360,1 ;  when  the 
defendant  left  or  removed  out  of  the  State,  or  ran  away,  or  went 
to  place  unknown,  ib.;  where  judgment  has  been  arrested,  revers- 
ed, or  suit  abated,  or  a  nonsuit,  361;  where  there  has  been  an 
acknowledgment  of  the  debt  or  claim,  361,2, 
Lost  Goods,  and  Lost  Negotiable  Instruments,  &c. ;  when  innocent  holder 
from  fmder  of  negotiable  instrument,  can  recover  on,  and  when 
not,  417,18.  420;  when  owner  thereof  cannot  sue  on,  418.  420. 

plaintiff  may  be  a  witness  to  prove  the  loss  of  an  instrument,  418. 
(See  Evidence.) 

rights  of  parties  to  a  lost  or  stolen  bank  bill  or  check,  420. 

the  owner  of  lost  goods  is  entitled  to  them  on  demand  though  sold  by 
the  finder  to  an  innocent  purchaser,  425.  23.     (See  Finder,  Sf-c.) 
Lunar  Month;  when  months  arc  mentioned  in  u statute,  note,  contract,  &c. 
how  computed,  157,  note  12. 


/ 


576  MEM  \lndex. 

Lunar  Month  —  conlinucd. 

when  note  'Sic.  due,  if  pay  bio  limited  number  of  months  after  date,  402. 
Lunatics,  Idiots,  and  Insane  Persons;  when  plea  of  insanity  a  good  defence 
ai^ainst  a  contract,  and  \sho  to  prove  it,  284. 

within  wliat  time  a  claim  in  favor  of  must  be  sued,  360,1. 

Madmen.     See  Liiitalics,  ^-c. 
Majority.     Sec  Agent. 

Mail;  money  sent  by,  and  lost,  who  shall  bear  the  loss,  379. 
Market,  Sales  at;  when  articles  are  sold  for  domestic  use,  the  seller  impli- 
edly warrants  that  the  article  is  sound  and  wholesome,  437. 
Marriage;  may  be  solemnized  by  a  justice  anywhere  in  his  county,  5. 

form  of  ceremony,  364;  fee  for,  and  for  making  return,  108. 

who  may  be  married,  363;  when  consent  of  parent  or  guardian  ne- 
cessary, ib.  how  justice  to  be  satisfied  thereof,  364. 

must  be  publication  of  bans,  or  a  license  obtained  in  the  county  the 
female  resides  in,  363. 

certificate  of,  must  be  transmitted  to  clerk  of  court,  and  when,  ib. 
form  of  the  certificate,  ib.  note  1. 
i\Iastcr  and  Servant;  (See  Ajrprentices;)  for  what  contracts  entered  into, 
and  injuries  done  by  the  servant,  the  master  is  liable,  21,2. 

when  the  servant  may  be  a  witness  for  or  against  his  master,  69,60. 

as  to  wages  of  servant  when  he  abandons  the  service  before  his  term 
expires,  or  is  dismissed,  471. 
I\Iechanic.    (As  to  tender  of  work,  see  Tender.) 

what  tools  of,  exempt  from  execution,  145,6. 

not  bound  to  perform  what  he  has  agreed  to  do  gratis,  240,1. 

but  if  he  performs  in  such  case,  cannot  recover  compensation,  288. 
is  liable  for  gross  negligence  in  doing  such  work,  241. 

to  what  extent  liable  for  unskillfulness  in  his  v/ork,  245,6,7. 

when  liable  for  loss  or  injury  to  property  worked  on,  247. 

employer  not  bound  to  take  the  article  unless  made  in  a  workmanlike 
manner,  472. 

how  amount  of  claim  for  work  may  be  reduced,  474. 

cannot  recover  for  making  a  ga.ming  device  or  gaming  machine,  288. 

work  to  be  done  on  demand,  when  it  may  be  done,  456. 

who  owns  the  article  before  delivery  where  the  employer  finds  part 
of  the  materials,  424,5;  or  when  an  article  is  ordered  and  paid  for 
in  advance,  424. 

his  lien  on  an  article,  for  his  work;  it  extends  to  the  whole  entire 
work,  355;  does  not  exist  where  time  is  given  to  pay  for  work,  ib.; 
nor  after  parting  with  the  possesssion  of  the  article,  356;  cannot 
sell  the  article  if  it  belongs  to  the  employer  upon  paying  merely  for 
the  work,  ib.  cannot  retain  the  article  for  charges  upon  other  ar- 
ticles, or  for  other  debts,  ib.  rem.edy  when  the  owner  or  others 
wrongfully  take  the  article,  ib.  owner  cannot  sell  the  article  so  as 
to  destroy  the  lien,  ib.  (See  Lien.) 
Members  of  CongVess;  privileged  from  arrest  for  debt,  &;c.  and  when,  28. 

139. 
Members  of  General  Assembly;  privileged  from  arrest  for  debt,  &c.  and 
when,  29.  139. 
penalty  for  arresting,  29. 

justice  who  issues  warrant  against,  for  a  crime,  must  give  the  Gene- 
ral Assembly  notice  thereof,  29. 


Index.l  MON  577 

Memorandum;  made  merely  to  refresh  memory  of  a  fact,  cannot,  in  gene- 
ral be  received  in  evidence,  80;  cases  in  which  such  memorandum 
may  be  received  in  evidence,  69,70. 
Mesne  Process;  what  is  so  called,  16  note  4. 

Messengers  of  the  General  Assembly;  privileged  from  arrest  for  debt,  &;c. 
and  when,  29.  139;  penalty  for  arresting,  29. 
justice  must  give  notice  to  General  Assembly  of  the  arrest  of,  in  a 
criminal  case,  ih. 
Mileage;  fees  of  constable  for  traveling  to  serve  process,  109. 
Militia;  when  privileged  from  arrest,  29.  139. 
Minors;  who  are,  346.     (See  Infants — Apprentice.) 
Misjoinder  of  Parties;  its  efiect  on  the  action,  19.  23. 
Misnomer;  is  a  mistake  in  the  name  of  a  person,  43. 

effect  of,  in  names  of  parties  to  actions  or  contract,  and  how  cured, 
43,4;  in  a  capias,  34;  in  an  execution,  167. 
Misrepresentation;  (See  Falsehood — Fraud.) 

Mistake;  how  to  sue  when  there  is  a  mistake  in  the  name  of  the  person  to 

whom  or  by  whom  a  contract,  note,  &c.  is  made,  17.  43. 

effect  of;  in  a  bill  of  particulars,  38,9;  in  making  icrong  parties  to  an 

action  by  or  against  partners,  374:  or  by  or  against  other  parties, 

19.  23 ;  in  the  natne  of  the  right  parties  to  an  action,  and  how  cured, 

43,4;  in  a  summons,  or  its  service,  and  how  cured,  43,4.  302;  duty 

of  a  constable  when  mistake  of  name  of  defendant  in  a  writ  34.  167. 

when  mistake  in  an  entry  on  the  docket  may  be  corrected,  116.  130. 

remedy  when  a  mistake  is  made  in  a  settlement,  or  after  a  receipt  in 

full  is  given,  190. 
when  a  person  receives  his  own  property  to  keep  and  re-deliver  to 

depositor,  239. 
when  in  a  written  or  sealed  contract,  it  cannot  be  set  up  to  change  or 

vary  its  terms,  84  to  86.  327. 
where  money  or  property  is  paid  by  mistake,  in  what  cases  it  may 
be  recovered  back,  282  to  284. 
Mittimus;  ybrms  of;  for  commitment  of  defendant  to  jail  when  suit  is  com- 
menced by  capias,  and  is  adjourned,  52;  against  a  witness  for  refu- 
sing to  testify,  when  deposition  is  to  be  taken,  89  note  5;  against 
a  person    for  disturbance  or  contempt  while  justice  is  trying  a 
cause,  279,80;  against  a  garnishee  in  attachment,  when  arrested 
on  a  warrant,  225  note  4;  against  an  accused  person  pending  a 
trial,  485;  against  an  accused  person  after  his  examination,  488; 
against  a  pcason  who  has  been  ordered  to  enter  into  a  recognizance 
to  keep  the  peace,  497  note  1. 
form  of  return  to,  52. 
fees  for  issuing,  197. 

for  the  service  and  return,  108,9. 
Mobs;  who  may  suppress,  and  how,  497  note. 
Moderate  Correction;  who  may  give  it,  and  to  whom,  493. 
Money;  in  what  cases  money  may  and  may  not  be  recovered  back,  whicli 
has  been  paid  on  a  contract,  9.  430;  or  by  mistake,  283,4;  or  under 
false  representation,  or  false  warranty,  or  concealment  of  quality 
of  goods,  435.  439. 
what  kind  of  money  is  a  legal  tender,  456,7. 

may  be  levied  upon  and  aj)plied  without  sale  to  an  execution,  147. 
Months;  whether  calendar  or  lunar,  when  mentioned  in  a  statute,  contract 
or  note,  &c.  157  note  12.  402. 

74 


/ 


578  N  E  o  [^Index. 

Months — ccmiinued. 

when  note  payable  certain  number  of  months  after  date,  the  day  of 
the  date  is  e.xcUuled  in  the  computation  of  the  time  when  due,  402. 
Moral  Obligation;  when  promise  to  do  a  thing  on  account  of  a  mere  moral 
obligation  to  do  it,  is  void  unless  there  was  a  previous  legal  obliga- 
tion to  do  the  thing,  287. 
Mortgage;  form  of,  for  lands,  506;  how  to  be  executed,  and  when  to  be 
recorded,  601  to  503. 
of  goods  and  chattels;  form  of,  512;  when   fraudulent  and  void,  as 
against  the  creditors  of  the  mortgagor,  318.  320;  but  is  good  as 
between  the  parties,  though  void  as  to  creditors,  320;  when  to  be 
recorded,  245;   cannot,  in  general,  be  levied  upon  by  execution 
against  the  mortgagor,  until  the  mortgage  is  satisfied,  148.  220; 
effect  of  mortgage  on  the  ownership  of  the  goods,  after  the  time 
for  the  payment  of  the  mortgage  money  has  ex})ircd5  243  note  1 ; 
(See  Pawnor  and  Pawnee.) 
Mortgagor  and  Mortgagee;  who  arc  are  so  called,  210  note  1. 
Mother;  if  father  of  children  dead,  the  mother  may  bind  out  her  children 

as  apprentices,  195. 
Mulatto;  who  is,  58 ;  when  not  a  competent  witness,  ib. 
Name;  effect  of  suing  a  person  by  a  wrong  name,  and  how  corrected,  43,4. 
in  what  name  to  sue  when  there  is  a  mistake  of  the  name  in  the  con- 
tract, 13. 
christian  and  surname  should  be  written  out  in  full  on  the  docket,  1 16. 
when  a  mistake  of  name  in  the  process,  Avhat  the  constable  must  do, 
34.  167. 
Navigation.     See  Vessels. 

Necessaries.     See  Infants — Husband  and  Wife. 

Negligence.     See  Borrotcer — Hirer  of  goods — Carrier  of  goods — Tres- 
pass zipon  lands — Work  and  labor,  Sf'C. 
Negotiable  Bond.     (As  to  other  bonds,  and  the  assignment  of  them,  ice. 
see  Bond — Recognizance — Assignment  of  Claims  not  Negotiable; 
as  to  sureties  in,  see  Surety.) 
when  balance  due  is  less  than  one  hundred  dollars,  though  the  penalty 

more,  may  be  sued  before  a  justice,  6.  384  note  2. 
form  of,  384. 

the  action  against  the  maker,  should  be  debt  and  not  covenant,  1 1. 
what  other  claims  may  be  joined  in  the  same  suit,  13. 
of  the  proof  of  the  execution  of,  on  the  trial,  and  when  required,  81 

to  84. 
must  be  fded  with  the  justice  and  indorsed  by  him,  and  on  appeal 

filed  with  the  clerk,  40.  125. 
nature  and  effect  of  a  penalty  in,  and  what  part  may  be  recovered, 

384  note  2. 
docket  entries  in  suit  on,  1 1 9,20. 

bank  must  sue  makers  find  indorsers  jointly,  or  pay  costs,  264. 
maker  or  obligor  of,  is  the  person  who  executes  or  makes  the  instru- 
ment, 384. 
payee  or  obligee  of,  is  the  person  to  whom  the  maker  promises  to 

pay  the  money,  ib. 
indorsee  of,  is  the  person  who  transfers  the  bond  by  indorsement, 

383.  385. 
indorser  of,  is  the  person  to  whom  a  bond  is  transferred  by  indorse- 
ment, ib. 


Index.]  NOT  579 

Negotiable  Bond — continued. 

holder  of,  is  the  payee,  indorser,  or  other  party,  who  for  the  time 

being  owns  and  holds  the  bond,  382. 
the  rights,  duties  and  liabilities  of  the  payee,  indorser,  indorsee,  and 
holder  of  a  bond,  are  the  same  as  the  payee,  indorser,  indorsee  and 
holder  of  a  promissory  note,  385.     (See  Pro7nissory  Note.) 
the  requisites  of  a  negotiable  bond  in,  general,  the  same  as  that  of  a 
promissory  note,  except  that  a  seal  is  annexed  to  the  bond,  383. 
385.     (See  Promissory  Note.) 
the  rights  and  liabilities  of  sureties  in  a  negotiable  bond  arc  the  same, 
in  general,  as  sureties  iu  a  promissory  note,  328,9.     (See  Surety.) 
exception  to  this  rule,  416  n.  1. 
effect  of  a  third  person,  (not  the  holder  or  transferrer  of  the  bond,) 

writing  his  name  on  it  as  a  surety,  327.  325. 
made  by  infant,  is  void,  347. 

within  what  time  an  action  on,  must  be  commenced,  358.     (See  Lim- 
itation of  Actions.) 
interest  on,  350.  584  n.  2.     (See  Interest.) 

partner  cannot  bind  the  firm  by  a  sealed  instrument,  372,  exception 
to  this  rule,  ih. 
Negotiable  Instrument;  what,  210.     (See  Bill  of  Exchange — Promissory 

Note — Negotiable  Bond.) 
Negroes;  when  not  competent  to  testify,  58. 

if  nearer  white  than  mulatto,  are  deemed  white,  ib. 
Newspaper  Advertisement.     (See  Advertisement.) 
New  Trial;  when  and  how  defendant  may  obtain  it,  45.  98;  form  of  entry 

on  the  docket  in  such  cases,  1 17. 
Non  est  Factum;  form  of  plea  of,  before  justice,  with  affidavit,  82. 
Non-joinder  of  Parties;  effect  thereof  upon  the  action,  19.  23.     (See  Par- 
ties to  Actions.) 
Non-suit;  form  of,  103. 

when  to  be  rendered,  and  effect  of,  as  to  bringing  a  new  action,  102,3. 
(See  Limitation  of  Actions.) 
Note.     (See  Promissory  Note.) 

Notice;  (See  Advertisetnent;)  2vhen,  by  whom,  and  hoio  given,  and  form 
thereof:  by  claimant  of  property  taken  on  execution  by  a  consta- 
ble, 173,4;  to  take  depositions,  87,8;  must  be  inclosed  with  the 
depositions,  92 ;  of  the  issuing  of  an  attachment,  2 1 9.  23 1 ;  by  claim 
ant  of  property  attached,  221,2;  when  an  election  is  contested, 
297,8;  in  forcible  entry  and  detainer,  301.  306;  [etfectof  not  giving 
it,  as  to  costs,  303,  and  n.  5;]  by  taker  up  of  stray,  and  the  appraise- 
ment thereof',  445,6,7;  by  claimant  of  property  taken  on  execution 
by  the  sheriff,  468,9;  of  a  sale  on  execution,  154,5  note  8. 
how  the  service  of  notice  may  be  proved,  78. 

when  notice  of  new  trial  after  judgment  by  default  must  be  given,  45. 
to  plaintiff,  to  i)roceed  to  trial  when  the  defendant  is  brought  up  on  a 

capias  and  how  served,  49. 
to  produce  papers  on  the  trial,  must  be  given  to  opposite  party  before 

proof  of  contents  of  papers  in  liis  possession  can  be  received,  78. 
to  wliom,  and  when  such  nc^tice  slujuld  be  given,  ib. 
how  the  rights  of  a  debtor  are  affected  by  notice  of  the  assignment  of 

the  claim  against  him,  212. 
effect  of  notice  by  carriers  of  goods  that  they  will  not  be  responsible 
for  losses  &c.  and  who  are  bound  by  it,  253,4. 


580  o  R  [Index. 

Notice — continued. 

to  a  creditor  by  a  surety  to  prosecuto  the  principal,  must  be  in  writing, 

and  the  eOect  thereof,  327.  329. 
by  husband  not  to  trust  his  wife,  its  effect,  338. 
to  a  partner  is  notice  to  the  firm,  372. 
of  the  dissohition  of  a  partnership,  how  to  be  given,  373;  its  effect 

on  the  liability  of  partners  for  subsequent  debts  of  the  firm,  ib. 
by  holder  of  negotiable  instrument,  to  charge  indorsers  &c.  405,6. 

(Sec  Promissory  Note — BUI  of  Exchange — Negotiable  Bond.) 
to  gunrantor  of  a  debt  or  claim,  when  to  be  given  to  render  him  liable, 

409. 
to  the  assignor  or  transferrer  of  a  claim  or  demand  not  negotiable, 
when  to  be  given  to  render  him  liable,  409.     (See  Assignment  of 
Claims  not  Negotiable.) 
what  is  constructive  notice,  369  note  3. 
Nuisance;  civil  suit  on  account  of,  cannot  be  brought  before  a  justice,  6,7. 

may  be  removed  by  person  annoyed  by  it,  464,5. 
Oaths  and  Affirmations;  (for  the  forms  of  afBdavits,  see  Affidavit.) 

forms  of:  to  witnesses,  on  a  trial,  93,4;  when  a  party  is  examined  as 
to  his  account  book,   190;  trial  before  arbitrators,  203  n.  3;  when 
depositions  are  taken,  89,90;  to  an  interpreter,  94;  to  the  truth  of 
an  affidavit,  94;  to  a  woman  on  cotnplaint  of  bastardy,  266  note  1 ; 
to  authenticate  an  account  against  an  estate,  193;  by  taker  up  of 
stray,  446  note  2;  by  appraisers  of  a  stray,  447  note  1 ;  to  arbitra- 
tors, 203  note  1 ;  to  clerks  and  judges  of  election,  299. 
to  jury:  in  civil  cases  generally,  97;  on  trial  of  right  of  property  ta- 
ken by  sheriff,  469  n.  2;  when  trying  a  complaint  by  or  against  the 
master  of  an  apprentice,  198  n.  3;  at  coroner's  inquest,  294. 
may  be  administered  by  justice  in  his  county,  5. 
substance  of  official  oath  of  justice,  when  and  before  whom  to  be 

made,  and  form  of  certificate  thereof,  3  note  3. 
substance  of  official  oath  of  constable,  269. 
fees  relating  to,  108. 
Obligation.     (See  Bond — Negotiable  Bond — Bail — Surety.) 
Obligor  and  Obligee;  who  are  so  called,  210  note  1. 
Occupation.     (See  Possession.) 

Officers;  when,  and  when  not  personally  liable  for  their  public  contracts,  21. 
when  three  or  more  appointed  to  do  an  act,  the  act  of  the  majority 

will  be  binding,  ib. 
who  are  privileged  from  arrest,  and  when,  28  to  30.  139. 
cannot  issue  capias  against  an  officer  for  official  or  corporate  debt,  30. 
proof  that  a  person  acts  in  an  official  capacity,  is  sufficient  evidence 

that  he  is  duly  commissioned,  &c.  68. 
when  contract  to  indemnify  for  illegal  act  is  void,  and  when  not,  171. 
promise  to  pay  officer  for  neglecting  to  perform  his  duty,  is  void,  288. 
township  officers  must  be  notihed  of  their  election  by  a  constable,  271. 
sureties  of,  extent  of  their  liability,  328.     (See  Justice  of  the  Peace — 

Constable.) 
suits  against,  cannot  in  general  be  brought  before  a  justice,  8.     (See 

Jurisdiction  of  Justice — Constable.) 
have  a  right  to  go  on  the  land  of  another  to  execute  process,  464. 
Opinion  of  Witness;  when  it  may  be  inquired  into,  and  is  evidence,  64. 
Or — when  used  at  the  termination  of  a  word  designating  the  parties  to  a 
transaction,  it  has  an  active  signification,  as  grant-or,  &c.  210  n.  1. 


Index.l  PAR  581 

Order;  form  of  an  order  for  restoration  of  property  to  claimant,  174,  n.  2. 
such  order  may  be  disregarded  by  the  constable,  175;    but  not  one 
issued  on  trial  of  right  of  property  .taken  on  attachment,  223. 
when  order  for  restoration  of  property  taken  on  attachment  must  be 

issued,  ib.  directions  for  making  out  such  order,  ib.  n.  1. 
on  merchant  &c.  for  property,  is  better  evidence  than  the  charo-e  in 

the  account  book,  and  should  be  produced,  190. 
the  word  order,  bearer,  or  assigns,  necessary  to  a  negotiable  instru- 
ment, 386;  payable  to  'A  or  order,'  or  'to  order  of  A,'  how  to  be 
transferred,  386.  389. 
form  of  order  to  appraisers  of  a  stray,  447,  note  1. 
recalling  execution,  when  and  how  done,  133.  125. 
Ordinances.     See  Toitns. 

Overseers  of  the  Poor;  when  liable  for  money  expended  for  a  pauper,  9. 
form  of  bond  to,  by  the  father  of  a  bastard  child,  266  n.  3. 
when  they  may  prosecute  the  father  of  a  bastard  child,  268. 
Ownership  of  Property ;  (sec  Parties  to  actions;)  when  it  passes  to  the  buy- 
er on  a  sale,  422  to  425. 
passes  to  a  trespasser,  on  paying  a  judgment  for  its  value,  12.  467. 
after  tender  on  a  sale,  the  seller  may  consider  the  goods  the  buyer's, 

or  not,  429. 
no  one  but  the  owner,  or  person  authorized  by  him,  can  transfer  the 

ownership  to  another,  23.  427. 
person  in  possession,  not  being  the  owner,  may  sue  a  person  who  takes 

or  injures  the  property,  12. 
purchaser  on  execution  takes  the  interest  that  the  debtor  had  in  the 

goods,  156. 
on  a  sale,  there  is  an  implied  warranty  that  the  seller  can  convey  the 
ownership,  436. 
Packet  Boat.     See  Boats  on  Canal. 

Pardon;  by  governor,  of  a  felon,  restores  his  competency  as  a  witness,  58. 

Parent  and  Child;  the  parent  may  bind  out  his  child  as  an  apprentice,  204. 

how  he  may  proceed  against  the  master  for  the  protection  &c.  of  the 

apprentice,  197  to  199.     (Sec  Apprentice.) 
parent  is  bound  to  support  his  minor  children,  365;  when  liable  for 
necessaries  furnished  to  his  child,  and  when  not,  ib.  when  entitled 
to  the  earnings  of  his  minor  children,  and  when  not,  ib. 
when  the  child  may  contract  and  sue  for  his  earnings,  ih. 
when  the  parent  may  sue  for  a  personal  injury  done  to  his  child,  ib. 
father  entitled  to  the  custody  of  his  child,  366.     (See  Bastards.) 
when  child  may  recover  from  a  parent  for  his  labor,  366. 
when  minor  child  must  have  the  consent  of  his  parent  before  marry- 
ing, 363. 
when  a  gift  by  parent  to  his  child  void,  as  against  creditors,  319,20. 
Parol  Evidence;  is  the  verbal  testimony  of  witnesses,  281,  n.  1. 

(See  Evidence.) 
Particulars,  Bill  of     See  Bill  of  particulars. 

Parties  to  Actions.     (See  Husband  and  ivife.     As  to  Admissions,  &c.,  see 
Evidence.) 
on  contracts  and  pro)nises; 

who  to  be  jj/aintif;  when  suit  is  not  on  a  negotiable  instrument,  15; 
when  made  to  two  or  more,  15,16;  when  made  to  two  or  more, 
and  one  or  more  are  dead,  16;  when  made  to  partners,  374;  in 
suit  for  fees  or  costs.  111;  in  suits  by  corporations,  the  Ohio  Pen- 


i82 


PAR 


llndex. 

(Parties  to  Actions,  on  contracts  and  promises — continued.) 

itcntiary,  school  districts,  und  townships,   16,17;    when  sureties 
sue  their  principal,  330;  when  the  contract  is  made  by  an  a^ent 
or  servant,  17;  when  a  mistake  of  the  name  of  the  plaintiff  is 
made  in  tlie  contract,  17.  43,4. 
effeet  of  mistake  in  making  parties  plaintiff,  19.  24. 
effect  of  mistake  in  the  names  of  the  right  party,  43,4. 
who  to  he  Defendant:  in  general,  19;  when   contract  is  joint  and 
several,  or  joint  only,  19,20;  when  contract  is  joint  &c.  and  one 
or  more  die,  ib.  when  contract  is  made  by  a  partnership,  374; 
when  contract  is  made  by  one  partner  in  the  name  of  the  firm, 
and  without  authority,  372;  when  contract  is  made  by  an  agent 
or  servant,  1 9  to  22 ;  when  contract  is  made  by  a  township,  school 
district,  or  other  corporation,  20;  or  by  a  person  under  a  ficti- 
tious name,  43;  or  by  a  guardian,  333;  or  when  a  mistake  of  the 
defendant's  name  is  made  in  the  contract,  17.  43,4. 
for  wrongs: 

who  to  he  plaintiff;  when  the  property  injured,  taken  or  destroyed, 
was  in  possession  of  one  and  owned  by  another,  12.  17,18;  or  is 
owned  by  two  or  more  jointly  or  separately,  18,19;  or  the  inju- 
ry was  done  before  or  after  the  decease  of  the  owner,  18;  or  the 
action  is  for  trespass  to  land,  465,6;  when  guardian  may  sue  in 
his  own  name,  333. 
effect  of  mistake  in  making  parties  plaintifl*,  19.  23. 
effect  of  mistake  in  the  name  of  the  right  party,  43,4. 
who  to  he  defendant;  when  the  injury  is  done  by  an  agent,  appren- 
tice, laborer,  or  other  servant,  21,2;  when  two  or  more  did  the 
injury,  23;  when  one  has  aided  or  procured  another  to  do  an  in- 
jury, though  not  present,  23;  when  the  party  who  did  the  injury 
dies,  ih. 
effect  of  mistake  in  making  parties  defendant,  23. 
effect  of  mistake  in  the  name  of  the  right  defendant,  43,4. 
one  party,  if  willing,  may  be  sworn  and  examined  by  the  opposite 

party,  61. 
a  party  may  be  a  witness  in  his  own  cause  to  prove  his  account,  187. 
(See  Account  and  account  book.) 
so,  to  prove  the  loss  Of,  and  search  for,  a  paper,  to  excuse  him  from 
producing  the  original,  78. 
when  privileged  from  arrest  for  debt  &c.  28  to  30. 
how' they  should  be  named  in  the  summons  and  on  the  docket,  32.  115. 
Partners  and  Partnership;  what  constitutes  a  partnership,  367. 

to  allow  an  agent  or  clerk  a  portion  of  the  profits  may  not  make  him  a 

partner,  368  n.  1. 
who  is  a  dormant  partner,  ih.  n.  2. 
when  common  carriers  of  goods,  or  stage  proprietors,  are  deemed 

partners,  249. 
each  partner  liable  for  debts  &c.  of  the  firm,  even  though  stipulations 

to  the  contrary  in  the  articles  of  partnership,  368. 
how  a  partner  may  limit  his  liability,  ib. 
who  may  be  charged  and  sued  as  a  partner  for  the  liabilities  of  the 

firm,  though  not  a  partner,  ih. 
secret  partner  is  liable,  ih. 

poiccr  of  one  partner  to  bind  tlie  firm;  by  drawing,  indorsing,  or  ac- 
cepting a  bill  of  exchange  or  promissory  note,  369 ;  or  doing  any 


Index.']  PAU  583 

Partners  and  Partnership — continued. 

other  act  coming  within  the  scope  of  partnei-ship  business,  even 
though  such  partner  abuse  the  power  confided  to  him,  370;  excep- 
tion to  this  rule,  371,2. 
one  parl7ier  cannot  hind  the  firm;  by  act  not  relating  to  or  coming 
within  the  scope  of  the  partnership,  unless  the  firm  consents  to  it, 
370 ;  nor  by  entering  into  a  contract  of  surety  or  guaranty,  372 ;  nor 
by  a  sealed  instrument,  ih.;  [the  partner  who  seals  the  instrument 
may  be  sued,  il>.;'\  nor  by  a  submission  to  arbitration,  ih.;  [excep- 
tion, tJ.;]  when  the  other  partners  forbid  the  act,  and  the  person 
for  or  with  whom  the  act  is  done,  has  notice  thereof,  571. 
how  a  partnership  may  be  dissolved,  372. 
notice  of  dissolution  must  be  given,  or  partners  liable  for  subsequent 

contract,  373. 
effect  of  dissolution  upon  the  liabilities  and  powers  of  the  partners 

thereafter,  373.  391. 
decease  of  partner  dissolves  the  partnership,  and  vests  all  powers  and 

rights  in  the  survivor,  372,3. 
by  discharging  one  partner  all  are  discharged,  368. 
when  admissions  of  one  partner  will  bind  the  firm,  372,3.  362. 

not,  in  general,  if  made  after  the  dissolution,  373. 
notice  to  one  partner  in  matters  relating  to  the  partnership  business, 

is  notice  to  all,  372. 
one  partner  cannot  sue  another  in  matters  relating  to  the  partnership, 

375;  exception  to  the  last  mentioned  rule, /Z». 
suit  hy  and  against;  how  they  should  be  named  in  the  summons,  32. 
374  note  1 ;  form  of  entry  on  the  docket,  118;  cannot  in  one  suit 
join  a  claim  due  to  or  from  them  as  partners  with  a  claim  due  to 
one  of  them,  13;  unless  the  suit  is  by  or  against  a  surviving  part- 
ner, 13,14 ;  what  dem.ands  may  be  set  off  by  or  against  them,  443,4 ; 
plaintiff  must  prove  the  partnership  or  be  nonsuited,  374;  how  the 
partnership  may  be  proved,  375;  if  plaintifts  sue  as  partners,  and 
one  or  more  are  omitted,  they  must  be  nonsuited,  374;  when  plain- 
tiff sues  as  surviving  partner,  what  he  must  prove,  ih.;  one  who 
in  fact  had  no  partner,  may  sue  alone,  ih.;  dormant  partner  need 
not  be  joined  in  the  action,  ih.;  effect  of  omission  of  partner  as  de- 
fendant, ih.;  if  defendants  are  not  all  partners,  plaintiff  must  be 
nonsuited,  ih. 
execution  against;  when  against  one  partner  for  his  private  debt,  how 
executed  against  property  of  the  firm,  375;  when  against  the  firm, 
how  executed,  ih. 
Part  Owner.     See  Parties  to  actions. 

Part  Performance  of  a  Contract;  right  of  parties  when  the  contract  is  for 
the  payment  of  money  or  property,  and  part  of  the  money  or  pro- 
perty is  paid,  428,9;  when  for  labor  for  a  fixed  time,  and  part  of  the 
labor  is  done,  471 ;  when  to  do  a  particular  piece  or  job  of  work, 
and  remains  unfinished,  472.  474;  when  for  building,  and  not  com- 
pleted, «Sic.  473. 
Passenger  Carriers.     See  Stage  Proprietors. 

Patent  for  Lands;  its  execution  need  not  be  proved  when  offered  in  evi- 
dence, 30G. 
copy  from  land  ofTicc,  or  certified  copy  from  recorder's  office,  may  be 
received  in  evidence,  306. 
Pauper;  when  ])erson  may  recover  from  the  overseers  of  jtoor,  money  ex- 
pended for,  9. 


584  PHY  [Index. 

Pawnbrokers;  their  rights,  duties,  remedies,  and  liabilities,  242,3. 
Pawnor  and  Pawnee;  wiio  arc  so  called,  242;  their  rights,  &;c.,  242,3. 
giving  up  the  pledge  will  discharge  the  surety  of  pawnor,  329,30. 
Payee;  is  the  person  to  whom  a  note,  bill  of  exchange,  or  negotiable  bond, 

is  made  payable,  381.383,4. 
Payment;  (see  Tf.ndcr;)  the  dillbrence  between  payment  and  set-off,  376. 
to  whom  it  may  be  made,  378. 
money  sqnt  by  mail  and  lost,  379. 

may  be  proved  by  a  witness,  though  a  receipt  w.as  given,  80. 
of  a  bond,  is  in  general  presumed  after  t\Venty  years,  68. 

how  this  presumption  is  destroyed,  ih. 
receipt  for  rent  last  due,  is  presumptive  evidence  that  previous  rent 

was  paid,  ih. 
when  payment  of  part  of  a  debt  in  discharge  of  the  whole,  will  dis- 
charge the  whole,  and  when  not,  183,4. 
when  payment  of  i)art  of  a  debt,  or  interest,  will  revive  a  debt  barred 

by  the  statute  of  limitations,  36  1,2. 
remedy  of  a  party  who  receives  counterfeit  bills,  or  bills  of  a  broken 

bank,  in  payment,  378  n.  1. 
the  rights  of  the  assignee  against  the  assignor,  when  claim  against 
another  who  is  insolvent,  is  transferred  as  a  payment  or  in  ex- 
change, 213. 
when  money  paid  in  performance  of  a  contract  may  be  recovered 

back,  9. 
when  money  or  property  paid  under  a  mistake  as  to  facts,  may  be  re- 

recovcrcd  back,  282  to  284. 
when  payment  ol'  an  unjust  claim,  or  more  than  due,  may  be  recovered 

back,  and  when  not,  282,3. 
money  paid  on  unjust  judgment  cannot  be  recovered  back,  283. 
judgment  against  a  wrongdoer  for  the  value  of  goods,  and  payment 

thereof^vests-.ttic  goods  in  the  wrongdoer,  12.  23.  467. 
how  surety  may  recover  from  principal  and  co-sureties,  330  to  332. 
when  two  debts  owing  by  party  paying,  to  which  the  payment  must 
be  applied,  376,7;  cannot,  in  such  case,  be  applied  by  creditor  to 
disphargc  a  debt  created  after  the  payment,  378. 
Peace,  Recognizance  to  Keep;  when  it  may  be  required,  and  proceedings 

in  such  cases,  495,6. 
Penal  Action.     See  Penalties. 

Penalties;  action  of  debt  may  be  brought  for  penalties,  11.  481;  must,  in 
general,  be  brought  within  one  year  358;  in  whose  name  to  be 
brought,  and  how  commenced,  491,2;  how  parties  should  be  de- 
scribed in  the  writ,  and  on  the  docket,  when  suit  is  brought  for, 
32.  491 ;  who  liable  for  fees  in  action  for,  112,13. 
appeal  lies  from  judgment  for,  123. 
stay  of  execution  allowed  on  judgment  for,  132. 
informer  cannot  discharge  defendant  from  custody  on  execution  for, 

170. 
in  suit  on  bond  with  penalty,  what  amount  can  be  recovered,  384  n.  2. 
Penalty  of  Bond;  nature  and  effect  of,  and  what  amount  can  be  recovered, 

384  n.  2. 
Penitentiary;  in  suits  relating  to,  how  to  sue,  16. 
Performance  of  Contract;  (See  Contract — Tender — Sales.) 
Perjury ;  how  proved,  66. 

Physicians;  are  liable  for  improper  prescriptions,  &c.  if  it  arise  from  want 
of  common  professional  skill,  241. 


Index.^  PRO  585 

Pictures ;  seller  of  indecent  pictures,  or  such  as  are  corrupting  to  the  morals, 

cannot  recover  their  price  from  the  buyer,  288. 
Plaintiff.     (See  Parties  to  Actions — Evidence.) 
Pledges  and  Pawns.     (See  Pawnor  and  Pawnee.) 
Porters;  ai-e  common  carriers  of  goods,  and  liable  as  such,  248.     (See 

Carrier  of  Goods.) 
Positive  Evidence;  what  is,  68. 
Possession;  is  presumptive  evidence  of  ownership,  ti. 

sufficient,  without  ownership,  to  entitle  an  officer  or  other  person  to 

sue  for  a  trespass  to  personal  property,  12.  151,2.356;  but  if  the 

value  of  property  is  recovered,  owner  cannot  afterwards  sue,  23,4. 

effect  of  possession  by  one  joint  owner  upon  the  rights  of  the  other,  1 8. 

when  proof  of  the  possession  of  goods  by  a  judgment  debtor,  shows 

the  return  of  a  constable  of  "  no  goods,"  false,  158. 
when  officer  should  take  goods  into  possession  on  levy,  149,50,1.  153. 
when  retained  by  seller  or  mortgagor  will  be  deemed  fraudulent,  as 

against  his  creditors,  318  to  320. 

when  necessary  to  maintain  an  action  of  trespass  upon  lands,  465,6. 

Power  of  Attorney ;  (See  Agents  and  Servants;)  form  of,  to  sell  lands,  507; 

to  lease  lands,  ib.;  to  collect  debts,  ib.;  to  confess  judgment,  508. 

made  while  in  custody,  to  confess  judgment,  how  to  be  executed,  285. 

when  relating  to  real  estate,  how  to  be  e.\ecuted,  acknowledged,  and 

recorded,  501  to  503. 
form  of  acknowledgment  of,  191. 

the  power  to  act  under  it  ceases  on  death  of  person  executing  it,  21. 
Premium  on  a  Loan.     (See  Interest.) 
Precept;  form  of,  for  the  body  of  defendant  when  in  jail  on  an  adjournment 

of  a  cause,  53. 
Presumptive,  or  Circumstantial  Evidence;  what  is,  67.     (See  Evidence.) 
Principal  and  Agent.     (See  Agent.) 
Principal  and  Surety;   (See   Sia^etij;)   who  is  called  principal,  and  who 

surety,  32.1.  '      '  '"'■'^    ""  "" 

Printers.     (See  Mechanics.) 

Prisoner;   (See  Arrest — Escape — Warrant — Mittimus — Capias  ad   Bes- 
pondendum — Execution;)  confessions  by,  when  they  may  be  receiv- 
ed in  evidence,  73,4. 
warrant  of  attorney  by,  to  confess  judgment,  how  to  be  executed,  285. 
what  contracts  made  by,  while  imprisoned,  will  be  binding,  and  what 
not,  284,6. 
Private  Papers;  cannot  be  taken  on  execution  as  goods  and  chattels,  147. 

which  need  not  be  produced  on  trial,  80. 
Privilege  from  Arrest;  who  are,  and  when,  28  to  30. 

summons  should  issue  against  persons  so  privileged,  28. 
liability  of  justice  for  issuing  capias  or  execution  for  body,  167  n.  3; 
if  such  process  issue,  in  what  cases  it  may  be  served,  167. 
Process.     (Sec  Commencement  of  Suit — Summons  —  Warrant — Execution 
—  Scire  Facias  —  Venire — Capias  ad  Respondendum — Mittimus^ 

Src.) 

Prochein  Ami.     (Sec  Infant.) 

Proclamation;  how  to  Ix;  made,  when  there  is  an  unlawful  assembly,  or 

riot,  497  note. 
Promise.     (See  Contract.) 

Promiss(^r,  and  Promissee;  who  are  so  called,  ItlO  n.  1. 
Promissory  Note;  (a.s  to  transfer,  (Sic,  of  claims  not  negotiable,  see  .^s^i^n- 

ment  of  Claims  nol  Negotiable;)  form  of,  512.  383. 
75 


686 


[Index. 


Promissory  Note  ■ —  continued. 

parties  thereto  described,  383. 

when  hahiiice  (Uie  on,  is  less  than  one  hundred  dollars,  may  be  sued 
before  a  justice,  6. 

may  join  in  one  suit  ditlcrcnt  notes,  d:c.,  and  other  ckiims  against  tho 
defendant,  13. 

when  capias  may  issue  on,  27. 

when  it  must  be  filed  with  tho  justice,  and  indorsed  and  retained  ])y 
him  after  judgment,  40;  wlien  appeal  taken  must  be  filod  with 
clerk  of  court,  125. 

defendant's  signature  must  bo  proved,  if  he  files  affidavit  denying  it, 
82;  form  of  aflidavit,  entry  on  the  docket,  &c.,  in  such  case,  81,2. 

bank  must  sue  drawers  and  indorsers  jointly,  or  pay  costs,  264. 

made  by  infant,  void,  347. 

interest  on,  rate  of,  and  when  to  commence,  351,2.     See  In/crest. 

effect  of  a  third  person  (not  the  transferrer  or  holder)  indorsing  his 
name  on  it  as  surety,  327.  325. 

surety  in;  how  discharged;  by  the  holder  making  a  new  bargain 
with  the  principal,  328,9;  by  concealment  of  the  risk  from  tho 
surety,  &c.  329;  by  holder  giving  further  time  to  the  principal 
debtor  to  pay,  ih.  by  holder  giving  up  other  security,  ih.  by  holder 
not  suing  j)rincipal  when  notified  in  writing  to  do  so,  il).  his  reme- 
dy against  his  co-sureties,  330;  when  liable  to  the  surety  for  the 
stay  of  execution,  332;  not  liable  to  tho  special  bail  of  the  princi- 
pal, ih.  not  liable  to  the  guarantor  of  the  note,  ih.  is  liable  for  in- 
terest, 328;  one  who  transfers  by  indorsement  is  not,  in_general, 
deemed  a  mere  surety,  416;  when  surety  signs  his  name  on  the 
back  of  the  instrument,  how  liable,  325.  327. 

requisites  of;  as  to  the  date,  385;  good,  though  made  on  Sunday,  ih. 
to  li'hom  jxiijable;  may  be  to  bearer  only,  ih.  when  to  a  fictitious  per- 
son, ih.  AiiJinn  name  of  payee  is  blank,  ih.  when  a  mistake  is  made 
in  the  name  of  the  payee,  386. 
the  words  "order,"  "bearer,"  or  "assigns,"  or  "to  the  order  of"  a 

person,  ih.  in  what  it  must  be  payable,  387. 
%ohen  payable;  to  be  negotiable  must  be  payable  at  some  period,  or 
ujjon  some  condition  that  must  happen,  ih.  if  no  time  mention- 
ed, is  payable  immediately,  388;  if  payable  after  date,  and  has 
no  date,  ih.  time  of  payment  cannot  be  varied  by  proof  of  mistake 
or  a  different  intention  from  that  expressed  in  the  instrument,  i&. 
if  due  a  certain  number  of  days  or  months  after  date  or  on  de- 
mand, 392.  402.  (See  Days  of  Grace — 7"/???^.) 
the  words  'for  value  received'  not  necessary,  388. 

maker  of;  is  the  person  who  signs  and  executes  the  note,  383;  no 
demand  on  him  in  general  necessary  before  suit,  397;  not  discharg- 
ed by  delay  of  demand,  ih.  but  demand  on  him  necessary  to  render 
indorsers  liable,  398.  404;  not  in  general  liable  for  the  costs  of  the 
indorsers,  398;  when  liable  to  an  innocent  holder  who  received  it 
from  a  thief,  &c.  418. 

who  7nay  transfer  or  indorse,  390,1. 

how  transferred :  when  by  delivery  only,  and  when  the  note  must  be 
indorsed,  393.  395,6;  when  the  payee  is  a  fictitious  person,  389; 
cannot  be  transferred  for  part  only  of  amount  due  on  it,  389. 

indorsement  of;  who  to  make,  390.  370;  form  of,  391,2;  form  of,  by 
an  agent,  391 ;  no  particular  form  for,  required,  ih.  in  blank,  how 


Index.']  PRO  587 

(Promissory  Note,  indorsement  of, — continued.) 

made,  and  its  elTect,  392,3.  384;  may  be  filled  up  by  the  holder  so 
as  to  make  it  payable  to  any  one,  393 ;  may  be  stricken  out  by  the 
holder  of  the  note,  «Z>.  if  stricken  out  by  mistake,  it  .will  not  dis- 
charge the  indorser,  ih.  in  full,  what  its  legal  effect,  and  the  form 
thereof,  ib.  when  so  made,  what  will  divest  the  indorsee  of  his  le- 
gal title  to  the  note,  393,4.418;  may  be  canceled  by  the  holder  of 
the  note,  393;  so  as  to  prevent  its  negotiability,  how  made,  and  by 
whom,  393,4;  waving  demand  and  notice  of  non-payment,  how 
made,  394;  without  recourse  on  the  indorser,  form  of,  ib.  directing 
the  money  to  be  paid  to  the  use  of  the  indorser,  its  cticct,  ib. 

indorser  of;  is  the  person  who  transfers  a  note  by  indorsement,  382; 
conditions  upon  which  he  is  liable,  401;  not  liable  unless  due  de- 
mand is  made  of  maker,  and  he  has  notice  of  the  non-payment  by 
the  maker,  398,9;  liable  only  to  the  person  to  whom  he  indorses, 
and  to  those  to  whom  the  note  is  (fierwards  transferred,  ib.  may 
take  up  the  note  by  paying  it,  and  then  suing  all  previous  parties, 
398;  need  not  in  such  action  produce  receipt  or  reindorsement,  400; 
when  an  indorser  is  paid  by  an  indorser,  all  who  indorsed  after  the 
party  did  who  is  paid,  are  discharged,  399 ;  cannot  recover  his  costs 
from  the  other  parties,  400;  cannot  recover  from  co-indorsers  a 
rateable  share  of  amount  paid,  ih.  exception  to  this  rule,  ib.  who 
pays  and  takes  up  the  note  may  negotiate  it,  ib.  if  he  pays  note  is 
entitled  to  its  possession,  ib.  always  warrants  that  the  note  is  not 
forged,  418;  is  discharged  from  liability  by  the  holder  delaying  to 
jflfiake  demand  of  payment  of  the  maker,  403;  is  discharged  by  not 
receiving  due  notice  of  such  demand  and  non-payment,  398.  404. 

transferrer  of,  by  mere  delivery  without  indorsement,  when  liable, 
400,401. 

must  have  notice  of  the  demand  upon,  and  non-payment  by  the  ma- 
ker, 409.  -• 

liolder  of;  is  the  payee,  indorsee,  or  other  party,  who,  for  the  time 
being,  ow'ns  and  holds  the  note,  382. 

may  sue  all  the  })arties  at  once  in  separate  suits,  399,400. 
how  he  should  proceed  to  save  his  costs,  400. 

at  jvhat  time  demand  to  be  ?}iadc;  when  note  is  payable  on  demand,  or 
negotiated  after  due,  or  no  time  of  payment  mentioned  in  it,  401. 
when  the  time  of  payment  is  stated  in  the  instrument,  402,3. 
must  be  made  during  the  usual  business  hours,  404. 

how  demand  to  be  made;  the  note  should  be  produced,  404. 

may  be  made  by  any  person  who  has  possession  of  the  note,  ib. 

when  the  maker  has  gone  from  home,  ib. 

when  he  has  changed  his  residence,  or  absconded,  or  gone  out  of 

tlie  State,  ib. 
when  the  note  is  expressly  made  [jayable  at  a  particular  place,  ib. 

demand  of  payment  need  not  l)e  made,  when  party  promises  to  pay,  who 
was  discharged  for  want  of  demand,  40fi. 
when  the  maker  has  absconded,  or  moved  out  uf  llu  slate,  or  can- 
not, on  due  inquiry,  be  found,  ///. 
when  the  note  is  forged,  or  givf^n  for  a  gambling  debt,  409. 

when  delay  in  making  demand  will  be  excused,  408,9. 

notice  of  non-paymeni :  must  l)0  given  to  indorsers  or  tiiey  will  be  dis- 
charged, 398.  404;  transf(;rrer  of  note  by  mere  delivery  without 
indorsement,  is  disfliarg»'d  mdess  he  has  notice,  409. 


588  REc  [Index. 

Promissory  Note ;  not  ice  of  non-payment — conlinued. 

when  it  should  be  given,  406 ;  how  it  should  be  given,  405. 
what  the  notice  should  contain  and  the  forui  thereof,  ib. 
to  whom  and  l)y  whom  it  should  Ix;  given,  407. 
in  what  cases  the  notice  need  not  be  given,  407,8. 

(See  Accomniodalion  paper.) 
in  what  cases  dc/ai/  in  giving  the  notice  will  be  excused,  407,8. 
etFect  upon  liability  of  parties  when  note  is  negotiated  after  it  is  due, 
411,12. 

when  demand  should  be  made  upon  the  maker  in  such  case,  400,1. 
blank  note  with  signatures,  liow  it  may  be  fdled  up,  309. 

when  good,  though  not  Idled  up  according  to  agi'eement,  389. 
if  note  payable  on  demand,  when  due,  308. 

when  interest  commences  on,  in  such  case,  351. 
when  demand  to  be  made  to  charge  indorsers  in  such  case,  401. 
when  payable  at  a  particular  place,  when  demand  necessary  at  the 

place,  386;  is  necessary  at  the  place  to  charge  indorsers,  404. 
statute  in  relation  to  bail  and  sureties,  not  applicable  to  indorser  of 

note,  416;  exception  to  this  rule,  ib. 
when  and  what  parties  discharged  by  one  giving  time  to,  or  rcleas 

ing  or  discharging  another,  414,5. 
the  rights  and  obligations  of  the  parties,  &c.,  to  a  note  that  is  stolen, 
lost  or  destroyed,  416;  how  demand  made  on  a  lost  note,  404. 
rights  of  innocent  holder  of  such  note^  417,18. 
rights  and  liabilities  of  parties  who  make  or  indorse  a  note  for  the 
mere  accommodation  and  benefit  of  another,  414.  408.  400. 
the  principal  debtor  is,  in  such  case,  liable  for  the  costs,  331.  400. 
defence  to  an  action  on:  by  the  payee  against  the  maker,  410;  or  by 
the  indorsee  against  his  indorser,  ib.  or  by  an  indorsee  against  the 
maker,  410  to  412;  or  by  an  indorser  against  an  intermediate  in- 
dorser, ib.  or  when  the  note  is  payable  on  demand,  412,13;  or  on 
accommodation  paper,  414. 
days  of  grace,  what  they  are,  402;  when  allowed,  402,3. 
Property.     See  Ownership  of  j>ropertij. 
Proof.     See  Evidence. 

Pi'osecuting  Attorney;  not  bound  to  attend  to  cases  of  bastardy,  268  n  1. 
Prostitution;  contracts  founded  on,  when  void,  288. 
Public  Enemies;  who  are  deemed,  250. 

carrier  of  goods,  not  liable  for  loss  occasioned  by,  ib. 
Publication.     See  Advertisement. 

Purchase  and  Purchaser.     See  Sales — Ownership  of  property. 
Putting  off  Trial.     See  Adjournment. 

Questions.     See  Leading  questions. 
Qui  Tam  Actions.    See  Penalties. 
Quit  Claim  Deed ;  form  of,  505. 

general  requisites  of  deeds  &c.  affecting  land,  501  to  503. 

Raft.     See  Drifts. 

Rasure.     See  Erasure. 

Ratification  of  Contract.     See  Contract — Infants — Partners,  SfC. 

Real  Estate;  (see  Laiul — Deed — Crops — Lease — Landlord  and  tenant;) 

actions  on  contracts  for,  cannot  be  brought  before  a  justice,  7,8. 

but  suits  for  trespass  may,  ib.     (See  Trespass  upon  land.) 
Recaption  of  Prisoner;  in  what  cases,  when,  where,  and  how  it  may  be 

made  in  civil  cases,  170.  36;  in  criminal  cases,  483. 


Lidex.^  SAL  589 

Recommendation.     Sec  Fraud — Letter  of  Credit. 
Receipt.     See  also  Release. 

when  in  full  of  all  demands,  its  effect,  85,6.  190. 
payment  may  be  proved  by  a  witness,  though  the  party  has  a  re- 
ceipt, 80. 
for  costs,  must  be  made  out  when  requested,  111. 
for  rent  last   due   is    presumptive   evidence   that    former  rent  was 
paid,  68. 
.  Recognizance.     See  Bail. 
Records  and  Transcripts.     See  Authentication  of  copies  of  records  a?id 

transcrij)ts. 
Recovery,  former.     See  Judgment. 

Refei'ence  to  Arbitration;  when  suit  before  a  justice  may  be  referred  to 
arbitration,  and  proceedings  in  such  case,  202  to  205. 
fees  for  entering  same  on  docket,  and  for  copy,  108. 
Release;  when  release  of  one  of  two  or  more  joint  debtors  or  wrongdoers 
will  release  all,  and  when  not,  187. 
so,  release  of  principal  will  discharge  the  surety,  328. 
form  of;  of  all  claims  and  demands,  513;  [effect  of  such  release  when 
under  seal,  190;]  by  a  party  to  a  witness  to  divest  him  of  interest, 
61 ;  by  a  witness  to  a  party  to  divest  witness  of  interest,  62;  quit 
claim  deed,  505. 
Rent;  when  reserved  in  kind,  landlord  has  lien  on  crop,  \bQ. 
Replevin;  action  of,  cannot  be  brought  befoi-e  a  justice,  8. 
Reputation  of  Witnesses; 'when  and  how,  and   by  whom,  it  may  be  nn- 

peached,  64,5. 
Request.     See  Demand. 
Rescinding  Contract;  how  and  when  it  may  be  done,  and  rights  of  parties 

thereafter,  428.  439.  425.  435. 
Rescue;  when  prisoner  on  a  capias  is  rescued,  the  officer  not  liable, 37. 

whether,  when  prisoner  on  an  execution  is  rescued,  the  officer  is  lia- 
ble therefor,  168.  171  n.  8. 
form  of  return  by  officer  of  rescue,  171  n.  8. 
Resident  of  a  County;  who  is  not  a  freeholder  or  householder,  may  be 
sued  in  any  township,  26. 
but  must  be  sued  in  his  own  township,  if  a  freeholder  or  householder 
of  the  county,  25,6. 
Resignation;  of  a  justice  of  his  office,  how  made, 4. 
Restitution.     See  Forcible  Entry  and  Detainer — Claimant. 
Returns  to  Process.     See  Suimnons — Capias  ad  Respondendum — Execu 
tion — Scire  facias — Mittimus  —  Warrant — Forcible    Entry   and 
Detainer,  Sfc. 
Reward;    (sec  Strays — Drifts;)  offered    by  advertisement,  may   be  re- 
covered, 9. 
Right  of  Property,  Trial  of.     See  Claiinant. 
Riot;  who  may  suppress,  and  how,  497  note. 
Road.     See  Highway. 
Rocks;  when  carrier  of  goods  liable  for  loss  occasioned  by,  251. 

Sabbath;  arrest  on  civil  process  cannot  be  made  on,  34. 

contracts  good  though  made  ami  dated  on,  385. 
Sales.     Sec  Tender —  Warranty — Fraud — Lien — Execution. 

when  a  sale  is  complete  so  as  pass  tlu;  ownership  of  property  with- 
out delivery  to  the  buyer,  422  to  425. 

proposition  on  one  side,  and  accentance  on  tlie  other  by  letter,  423. 


590 


llndex. 


Sales — continued. 

order  for  property,  when  l)in(]ing  and  wlien  not,  424. 

order  for  inakiiiff  an  article,  when  the  article  is  the  buyer's,  ii. 

where  the  materials,  or  a  i)art,  are  ibiuid  by  the  manufacturer  or  em- 
ployer, whose  they  are  when  worked  up,  424,5. 

effect  on  sale,  if  the  property  is  burnt  or  destroyed  at  time  of  sale,  424. 

property  obtained  by  sale  under  false  pretences,  may  be  recovered 
back,  425;  but  not  if  sold  by  the  fraudulent  buyer,  ih. 

place  of  demand  and  delivery  of  goods  contracted  to  be  sold,  425,6. 

no  excuse  for  nondelivery  by  the  seller,  that  the  buyer  was  not  at  the 
place  to  receive  them,  427. 

when  demand  is  necessary  before  suit  brought,  425,6. 

mode  and  time  of  day  of  making  demand  and  tender,  427,8. 

at  what  time  property  taken  on  trial  must  be  returned,  440. 

in  suit  for  price,  defendant  may  reduce  the  recovery  by  showing  fraud 
in  the  quality,  or  false  warranty,  440.  432.  (See  Fraud  —  War- 
Tanly.) 

when  buyer  may  show  in  such  action,  that  the  plaintiff  had  not  title, 
437,8. 

effect  on  rights  of  parties  by  due  tender  of  it,  460,1.  429,30. 

what  seller  may  do  with  the  projierty  after  the  tender,  429,30. 
damages  in  such  cases,  430,1.     (Sec^  Tender.) 

of  the  lien  of  seller  for  the  price  of  goods  sold,  356,7. 
(See  Lien — Mechanics.) 

when  buyer  fraudulently  intends  not  to  |)ay  seller,  he  may  recover 
back  the  goods  before  the  credit  expires,  360  n.  2. 

effect  of  payment  of  judgment  against  a  person  who  wrongfully  "tWces 
and  keeps  an  article,  12. 

owners  right  is  not  divested  by  finder,  thief,  or  other  person  wrong- 
fully selling  the  article,  23.  425. 

liability  of  an  assignor  who  buys  property  with  a  note  or  other  claim, 
210,11.409. 

liability  of  the  seller  of  a  note,  account,  or  other  claim,  tranferrcd 
without  indorsement,  300,1.  212,13.  409. 

promise  by  a  third  person  to  pay  for  the  goods,  must  be  in  writing, 
or  it  will  be  void,  322,23. 

when  master  liable  for  goods  sold  to  his  servant,  22. 

when  infant  liable  on  his  purchase,  and  when  not,  346  to  348, 

when  husband  liable  on  the  purchases  of  his  wife,  and  when  not,  338,9. 

when  parent  liable  for  goods  furnished  to  his  minor  children,  and 
when  not,  365. 

when  sale  by  a  debtor  will  be  deemed  fraudulent  and  void,  as  against 
his  creditors,  318  to  320.     (See  Frauds.) 

how  strays  are  sold,  450. 
Sample,  Sale  by.     See  Warranty. 
Satisfaction.     See  Accord  and  Satisfaction. 

fees  for  entry  of  satisfaction  of  suit  on  docket,  108. 
Schedule.     See  Execution — Attachment. 
School  District;  by  what  name  it  should  sue,  17;  by  what  name  sued,  20. 

how  summons  served  on,  32. 
School  master;  may  whip  his  pupil  moderately,  493. 
Scire  Facias.     See  Execution — Appeal — Constable. 

when  to  issue;  on  recognizance  for  stay  of  execution,  134,5;  on  trans- 
script  for  the  benefit  of  the  surety  for  stay,  137;  on  recognizance 


Index.l  SET  591 

Scire  Facias,  tuJien  to  issue — continued. 

of  appeal,  125,G;  on  bond  executed  by  claimant  of  property  ta- 
ken on  attachment,  224,  n.  1 ;  on  the  docket  of  another  justice,  or 
one  whose  office  is  vacant,  or  on  transcripts  therefrom,  178,9;  a- 
gainst  a  constable  for  making  false  return,  failing  to  make  return, 
or  refusing  to  pay  over  money,  273;  against  sureties  of  constable, 
275.  273. 
requisites  of,  126. 

for7n  of;  on  recognizance  for  stay  of  execution,  135;  (see  Execu- 
tion;) on  recognizance  of  appeal,  where  appeal  is  dismissed,  127; 
when  judgment  rendered  agamst  the  appellant,  127;  (see  Appeal.) 
on  transcript  from  the  docket  of  another  justice,  180;  on  bond  of 
claimant  of  property  taken  on  attachment,  224  n.  1 ;  (see  Attach- 
ment;) against  a  constable  for  a  false  return  &c.  or  refusing  to  pay 
over  money  collected,  273;  against  the  sureties  of  a  constable,  276; 
(see  Constable.) 
how  served  and  returned  generally,  126.  136. 
when  justice  may  proceed  to  render  judgment  on  a  return  'not  found,' 

178.  180. 
how  and  by  whom  served  in  a  suit  against  a  constable,  273. 
fees  for  issuing,  107;  for  service  and  return,  108,9. 
when  issued  on  a  judgment,  defendant  cannot  set  up  a  defence  that 

existed  before  the  judgment,  179. 
docket  entries  in;  wlien  the  proceeding  is  on  recognizance  for  stay 
of  execution,  136,7;  or  on  a  recognizance  of  appeal,  128,9;  or  on  a 
transcript  from,  and  on  the  docket  of  another  justice,  181. 
Scnmrl  Seal;  of  ink,  is  valid,  384  n.  1. 
Seal;  may  be  made  of  wax,  wafer  or  ink,  ih.  n.  1. 

what  is  an  official  seal,  92  n.  7. 
Search  Warrant;  form  of  affidavit  whereon  to  issue,  480. 
when  and  in  what  cases  it  should  be  issued,  ib, 
form  thereof,  481. 
how  it  may  be  served,  482,3. 
liability  of  officer  for  neglect,  delay,  &c.,  483. 
form  of  return  to,  4S4. 

fees  for  issuing,  107;  for  service  and  return,  108,9. 
Security.     See  Bail — Surety. 

Security  to  keep  the  Peace;  when  it  may  be  required,  and  form  of  pro- 
ceedings in  such  cases,  495,  to  497. 
Servant.     See  Master  and  Servant — Work  and  Labor. 
Service    of  Process.      See    Summons — Capias   ad   Respondeiulum — Scire 

Facias — Execution —  Warrant — Mittimus,  Sj-c. 
Services  and  Work.     See  Work  and  Labor. 
Set  off;  (see  Damages-^  dilference  between  set  off  and  payment,  376. 

evidence  of  defendant's  set  off  must  Ix;  confined  to  his  bill  of  partic- 
ulars, 38.     See  Bill  of  Particulars. 
form  of  judgment  when  a  set  ofl'is  allowed,  105. 

in  what  actions  the  defendant  may  1x3  allowed  to  make  a  set  off,  441; 
what  demands  may  set  off,  ib.;  must  be  licpiidiited  demand,  ib.  n.  3; 
must  }je  due  at  commencement  of  .suit,  442;  must  be  owned  by  de- 
fendant at  commenc(;nient  of  suit,  ih.;  but  when  suit  is  by  an  ad- 
ministrator or  executor,  the  set  off  must  have  Ix^en  due  and  own- 
ed by  defendant  Ix-'forc  tlic  death  of  the  decedent,  /'/;.;  the  debt 
sued  on  and  the  set  off,  must  be  due  and  owning  in  tiie  same  right, 


592  s  T  A  [Index. 

Set  Ofl' — contimied. 

442,3;  therefore  debt  fine  decedent,  cannot  be  set  off  against  debt 
due  his  executor  or  administrator,  443;  nor  can  demand  due  execu- 
tor or  administrator  be  si't  oil"  against  demand  due  the  estate,  ib. 
when  demand  which  agent  owes  may  be  set  oil"  against  a  debt  due  to 

his  i)rincii)al,  &c.  and  when  not,  ih. 
wlien  separate  debt,  due  to  one  defendant,  may  be  set  oif  against  a 

joint  demand  (hie  by  all  the  defendants,  and  when  not,  443,4. 
as  to  set  off  of  debts  due  by  or  to  a  partner,  in  suit  by  or  against  the 

firm,  443,4. 
what  claims  arc  not  negotiable,  210. 
whether  in  a  suit  on  a  claim  not  negotiable,  the  defendant  may  set  off 

a  claim  due  him  from  the  assignee,  215. 
whether  the  defendant  may  set  off  a  claim  against  the  plaintiff,  not 

negotiable,  which  has  been  assigned  to  him,  212. 
whether  the  owner  of  goods  may  set  off  against  the  freight,  the  injury 
done  them  by  the  carrier,  or  damages  arising  from  delay  in  trans- 
portation, 254  n.  1. 
the  assignment  of  a  claim  not  negotiable,  does  not  bar  the  debtor  from 
his  set  off  of  a  demand  he  held  against  the  assignor  before  notice  of 
the  assignment,  215. 
when  set  otf  is  allowed  in  suit  on  a  negotiable  bond,  promissory  note, 
bill  of  exchange,  and  when  not,  411  to  414. 
Settlement;  is  not  evidence  that  items  not  mentioned,  were  settled,  190. 
when  it  may  be  corrected   by  proof  of  mistake,  and  when  not,  190. 

282. 
by  an  administrator  or  executor  with  the  court,  its  effect  on  claims  not 

before  presented,  192. 
within  what  time  an  action  should  be  brought  on  a  balance  found  due 
on  settlement,  362.     (See  Account  stated.) 
Sheep.     See  St7~ays. 
Sheriff;  privileged  from  arrest  for  debt,  and  when,  29.  139. 

liable  for  escape,  if  no  one  at  jail  to  receive  a  prisoner,  167. 
trial  of  right  of  property  taken  by,  with  forms,  &c.,  468  to  470. 
Signature.    ,  See  Evidence — Blank  Signature. 
Silver  Coin;  which  are  a  legal  tender,  456,7. 
Simple  Contract.     See  Contract. 
Single  Bill;  what  is  so  called,  384. 

Slander;  action  of  cannot  be  brought  before  a  justice,  8. 
Snags;  when  carrier  of  goods  liable  for  loss  occasioned  by,  251. 
Soldiers;  of  the  revolution,  and  those  in  the  service  of  the  United  States, 

privileged  from  arrest,  29.  139. 
Special  Bail;  who  are  so  called,  332  n.  3. 

cannot  recover  from  surety  of  defendant,  the  amount  they  pay,  332. 
Specialty;  what  is  so  called,  281. 

Stage  Proprietors;  (See  Stat.]).  864;)  who  are  deemed  partners,  449. 
must  carry  all  passengers,  if  there  be  room,  &c.,  255. 
their  duty  as  to  good  coaches,  horses,  and  drivers,  255,6. 
■  liable  if  they  overload  coach,  256. 
liable  for  acts  of  servants,  agents,  drivers  and  partners,  ib. 
what  is  deemed  negligence,  &c.,  of  drivers,  and  what  care  must  be 

taken  to  prevent  accidents,  256,7. 
must  take  care  of  baggage,  256. 
liable  if  baggage  is  lost,  257,8. 


Index.}  STR  *93 

Stage  Proprietors — cuntiiiued. 

have  a  lien  on  baggage  for  fare,  and  may  demand  it  in  advance,  258. 

where  to  leave  passengers  at  the  termination  of  their  journey,  267. 
State  Warrant;  when  it  should  be  issued,  480. 

constable  bound  to  receive  it,  483. 

form  of,  480,1. 

how  served,  402,3. 

liability  of  officer  for  delay,  escnpc,  &c.  483. 

return  to,  37.  483,4, 
Stay  of  Execution;  when  allowed,  and  v.hen  not,  131,2. 

for  what  time  allowed,  132. 

when  and  how  to  be  obtained,  with  form  of  recognizance  of,  132,3. 

no  delay  in  issuing  execution  to  give  defendant  time  to  enter  into  such 
recognizance,  133;  but  if  execution  has  been  issued,  justice  must 
recall  it,  and  how,  133. 

when  second  recognizance  for,  may  be  required,  134;  which  recogni- 
zance to  be  first  prosecuted  in  such  case,  135. 

surety  for  stay  of;  how  made  liable  to  judgment,  134;  execution 
must  be  first  issued  and  returned  against  defendant,  before  proceed- 
ing agaizist  surety,  134;  effect  of  death  of  defendant  on  his  liability, 
ib.;  form  of  scire  facias  against,  and  how  prosecuted,  133,6;  may 
be  proceeded  against  if  in  the  county,  5;  may  have  execution  issued 
on  the  original  judgment,  133,4.  137,8,9;  may  sue  defendant  on  a 
transcript  of  judgment,  and  how  and  where,  137;  when  he  may  re- 
cover from  the  surety  of  the  defendant,  332;  justice  not  bound  to 
issue  execution  after  the  stay  expires,  unless  requested,  139;  effect 
of  defendant  staying  proceedings,  after  a  levy,  154.  153  n.  7-  en- 
tering stay  does  not  prevent  defendant  from  entering  appeal,  124. 
Steamboats;  (See  Carrier  of  Goods.)  when  collision  between,  which  liable 
for  damages,  258. 

duty  of  those  entering  port  to  prevent  collision  with  those  in  port,  259. 

when  they  must  give  way  in  favor  of  vessels  using  sails  only,  ib. 
Stock  in  a  Corporation;  cannot  be  taken  on  execution,  147. 
Stockholders;  cannot  be  permitted  to  testify  for  the  corporation,  60. 
Stolen  Property ;  thief  cannot  transfer  the  ownership  of  goods,  425.  23. 240. 

when  he  can  transfer  a  negotiable  instrument  so  that  the  holder  can, 
and  the  owner  cannot  recover  on  it,  418. 

when  he  can  transfer  a  bank  bill  or  bank  check,  so  that  the  owner  will 
not  be  entitled  to  it,  420. 
Stoned  Horse;  when  he  may  be  taken  up  as  a  stray,  452. 

rights  of  owner,  and  proceedings  of  taker  up,  452,3. 
Stopping  Goods  by  Seller.     Sec  Lien. 
Strays.     See  Drifts. 

forms  relating  to;  advertisement,  445  n.  1;  oath  of  taker  up,  446  n 
1;  order  to  appraisers,  446  n.  2;  oath  to  a])praisers,  447  n.  1;  re- 
turn of  appraisement,  ib.;  bond  of  taker  up,  448  n.  1;  warrant  for 
taking  stray  from  taker  up,  and  return,  448,9,  notes;  nomination  of 
freeholders  to  estimate  allowance  to  taker  up,  450  n.  1 ;  return  of 
freeholders,  450  n.  2;  bond  of  purchaser  of  stray,  451  n.  2. 

record  book  of" strays  must  be  kept  by  justice,  454. 

to  whom  l)or)k  to  ix;  delivered  when  his  office  is  vacated,  ib. 

copies  from,  Ijy  his  successor,  evidence,  I'i. 

who  may  take  up,  what  may  be  taken  up,  and  when,  445.  447.  45t. 

when,  and  how,  and  where,  in  general,  advertised,  445. 

76 


o94  SUM  l^lndcx. 

Strays — continued. 

oath  of  taker  up,  and  what  it  should  bo,  445. 

effect  of  not  advertising  or  making  the  oath,  446. 

when  justice  to  order  ai)praiseinent  of,  ih. 

taker  uj)  to  give  notice  to  appraisers,  447.  ,  ,;• 

taker  up  of,  must  deposit  money  with  justice,  ih. 

what  justice  to  do  witli  it  and  the  appraisement,  ib.  SJ. 

who  may  take  up,  if  running  without  settlement,  ih.;  proceedings 

thereon,  447  to  449;  duty  of  constable  in  such  case,  449. 
when  owner  is  entitled  to  strays,  and  on  what  conditions,  ib. 
what  reward  to  taker  up  must  Ik;  ])aid  by  owner,  449.  'J 52. 
when  parties  disagree  as  to  keeping,  how  to  j)rocecd,  449,50j  or  owner 

will  not  pay  allowance,  450. 
when  taker  up  entitled  to  stray,  450. 
when  and  how  sold,  451. 

when  owner  entitled  to  purchaser's  bond  or  proceeds  of  sale,  451,2. 
how  they  must  be  kept,  and  effect  when  abused,  &c.,  452. 
when  stoned   horse  may  be  taken  uj),  ih.;  proceedijigs  in  such  case, 

and  right  of  parties,  452,3. 
effect  upon  strays  by  new  township  being  laid  off,  453. 
what  ordinances  may  not  bo  made  by  towns  and  villages,  454. 
penalties  for  ommission  or  commission  of  an  act  in  violation  of  the 

statute,  and  how  prosecuted,  454. 
fees  relating  to;  justice,  clerk  and  printer,  447;  constable,  450,1 ;  free- 
holders and  appraisers,  453. 
Sub-agent.     See  Agent. 

Submission  to  Arbitration.     See  Arhitrament  and  Award. 
Subpoena,     See  Witiiess. 

forms  of;  in  suit  pending  before  a  justice,  53;  when  party  desires  a 

witness  to  bring  papers,  54  note  1 ;  when  deposition  is  to  be  taken, 

88;  in  criminal  cases,  485;  when  issued  for  coroner's  inquest,  294 

note  3. 

substance  of,  when  depositions  are  taken  to  contest  an  election,  298 

note  1. 
may   be  issued  for  a  witness,  and  served   in  any  township  of  the 

county,  5.  64. 
how  served  and  returned,  54. 

fees  for  issuing,  107;  for  service  and  returns  of,  108,9. 
Subscribing  Witness;  when  he  must  be  produced  to  prove  the  instrument, 

83,4.     (See  Evidence.) 
Suggestion  of  Lands;  when  and  how  made,  162,3. 
Suits.     See  Commencement  of  suit — Action — Parties  to  actions. 
Summons;  what  is,  25. 

when  it  is  the  first  process,  27,8. 
against  a  person  of  another  township  or  county,  25,6. 
when  defendant  is  privileged  from  arrest,  28. 
requisites  of,  and  its  indorsements,  31. 

how  parties  should  be  described  in,  32.  374  note  1.  -^ 

what  action  should  be  named  in,  31 ;  in  conimon  suit,  with  the  indorse- 
ments, ih. 
form  of,  in  common  suit,  with  the  indorsements,  ih. 
within  \\jhat  time,  and  how  served,  32,3. 
when  and  how  returned,  and  form  of  return,  33. 
form  of,  to  arbitrators,  203  note  2;  how  served  and  returned,  203. 


Index.']  sun  0^5 

Summons — continued. 

form  of,  against  a  master,  for  benefit  of  apprentieo,  198  note  1 ;  is 
served  and  returned  as  in  other  cases,  198  note  1. 

substance  of  form  of,  for  a  master  against  apprentice,  200  note  1 ;  is 
served  and  returned  as  in  other  cases,  198  note  1. 

form  of,  in  forcible  entry  and  detainer,  311;  when  served  and  return- 
led,  302. 

rees  for  issuing,  107;  for  service,  108. 
Sunday;  arrest  in  civil  case  cannot  be  made  on,  34. 

contracts, ^c.  good,  though  made  and  dated  on,  385. 
Surety.     (See  Guaranty — Letter  of  credit.     As  to  bail  for  costs,  appear- 
ance on  adjourned  day  of  trial,  appeal,  stay  of  execution,  &c.  see 
Bail — AjtpeaJ — Stay  of  Execution.) 

when  he  cannot  be  a  witness  for  his  principal,  60. 

his  remedy  against  his  principal,  330,1. 

when  sued  with  his  principal,  it  may  be  certified  which  Is  surety, 
105;  but  not  if  surety  is  sued  alone,  ih.;  form  of  such  certificate, 
106;  form  of  execution  in  such  case,  142;  when  no  stay  of  execu- 
tion is  allowed  in  suit  by  surety  against  principal,  131;  when  no 
appeal  allowed  in  such  case,  124. 

when^  and  how,  and  for  what,  sureties  of  constable  proceeded  against, 
275.  273.     (See  Constable.) 

when,  and  for  what,  sureties  of  justice  liable,  164,5. 

contract  of  surety  will,  in  general,  be  void,  if  not  in  writing,  321,2; 
what  is  sufficient  agreement  in  writing,  326  to  328;  cannot  be  made 
out  or  changed  by  verbal  evidence,  327. 

proposition  to  guaranty  not  sufficient,  unless  accepted,  &c.  326. 

promise  of  surety  need  not  be  in  writing,  when  creditor  releases  a 
lien  on  account  of  the  promise  of  the  surety,  322;  nor  if  new  con- 
sideration arises  on  the  promise  of  the  surety,  ih.;  nor  where  ihe 
credit  is  given  and  the  debt  contracted  by  him,  323,  nor  where  the 
promise  is  to  the  person  who  owes  the  debt,  323,4;  nor  when  the 
promise  of  the  surety  extinguishes  the  original  debt,  322;  nor 
where  the  depositary  of  money  promises  to  pay  it  over,  324. 

when  and  how  a  partner  may  bind  the  firm  as  surety,  and  when  not, 
371,2;  if  partnership  not  bound,  the  partner  who  signs  will  bo,  372. 

contract  of  surety  will,  in  general,  be  void,  if  not  founded  on  a  suffi- 
cient consideration,  325;  consideration,  when  surety  engages  with, 
or  at  the  time  the  principal  does,  t6.;  when  surety  engages  for  pay- 
ment, &c.  of  a  prior  claim,  ih.;  when  the  promise  is  founded  on  a 
past  consideration,  li.;  whether  the  consideralion  must  appear  in 
the  writing,  327,8. 

effect  of  blank  indorsement  on  a  claim,  327.     (Sec  Blank  Sii^naturc.) 

extent  <f  liahiliti/  of  .surety;  to  what  period  liability  limited  on  an 
official  bond,  328;  not  liable  beyond  penalty  of  his  bond,  ih.;  is  lia- 
ble for  interest,  ih.  when  surely  for  stay  of  execution  may  recover 
from  original  surety  of  the  judgment  chdjtor,  332;  surety  of  judg- 
ment d<;l)tor  not  liable  to  sjjccial  bii]\,ih. 

when  creditor  must  first  make  demand  frcjin  jiriiK-ipal,  328.  400; 
not,  in  g(!neral,  bound  to  first  sue  the  principal,  328. 

how  diisc/uir^ed:  by  creditor  not  suing  the  principal,  afier  written 
notice  to  do  so,  329;  or  making  a  n^^'w  bargain  with  him,  or  dis- 
charging liiin,  328,9;  or  CDUccali/ig  fads  from  snrf;ty,  329;  or  giv- 
ing finlhcr  time  to  principal,///.  <ir  parting  with  other  security, 


596  T  E  s  [Index. 

Surety,  hmc  dischnrped — conlinued. 

^^29;  or  hy  delay  of  demand  on  debtor,  328.  409;  or  delay  to  give 
notice  of  nonpayment  to  surety,  409. 
remedy  of  sureties  against  each  other,  331,2. 
Surety  for  Good  l^ehaviour;  when  it  may  be  required,  and  proceedings  in 

such  cases,  495  to  498. 
Surname.     See  Mistake. 

Survivors;  when  survivor  of  joint,  and  joint  and  several  promisors  or  pro- 
misees, must  alone  sue  or  be  sued  on  the  promise,  16.  19. 
when  property  owned  by  two  or  more  is  injured,  and  some  of  owners 

die,  who  to  sue  18.19. 
when  two  or  more  injure  property,  they  ma)^  be  sucfl  separately,  and 

judgment  had  for  the  damages  done  by  all,  23. 
survivors  of  a  partnership  have  all  rights  and  powers  of  firm,  372,3. 
Swearing  Witnesses.     See  Oaf /is  and  Afjirmatinns. 
Talesmen,  in  jury  cases,  97. 
Tailors.     See  Mechanics. 
Tavern  Keepers.     See  Innkeepers!. 

Taxation  of  Costs;  what  costs  to  be  taxed  against  the  plaintiff,  and  what 
against  the  defendant,  in  g(>neral,  109,10;  in  cases  of  forcible  entry 
and  detainer.  313.  106.     ' 
Teamsters;  are  liable  as  common  carriers,  248.    (See  Carriers  of  Goods.) 
Tenant.     See  Landlord  and  Tenant — Forcible  Entrij  and  Detainer. 
Tender;  (See  also  Payment;)  at  what  hour  of  the  dav  a  tender  should  l)o 
made,  427,8. 
in  what  cases,  after  an   injury,  or  after  breach  of  a  contract,  and  be- 
fore suit,  tender  may  be  made  with  effect,  455. 
in  all  cases  tender  after  breach  of  contract,  or  after  injury  done,  can 
be  made  after  suit  is  commenced,  by  bringing  money  and  costs 
into  court,  455,6.  461 ;  form  of  proceedings  in  the  last  mentioned 
casas,  461,2. 
on  a.  contract  of  sale;  where,  and  when  property  to  be  delivered  426,7; 
what  the  seller  may  afterwards  do  with  the  property,  429,30;  the 
seller's  and  buyer's  remedy  after  tender  and  refusal,  430, 1.  460. 
461 ;  form  of  entry  on  the  docket  in  such  case,  460  n.  1. 
on  contract  for  labor;  when  and  where  to  be  made,  456 ;  the  remedy 
of  the  parties  thereafter,  460,1  ;  form  of  entry  on  the  docket  in 
such  case,  460  n.  1. 
for  a  trespass,  when  and  how  made,  455.  459;  its  effect,  and  form  of 

judgment  in  such  case,  459  and  n.  3. 
on  contract  for  payment  of  money,  and  generally;  when  it  may  be 
made,  455,6.  427;  to  whom  and  by  whom  it  may  be  made,  456;  in 
what  kind  of  money,  556,7;  what  amount,  457;  in  what  cases  the 
money  must  be  produced,  457;  offer  to  pay  without  having  the  mo- 
ney to  produce,  is  no  tender,  458;  it  must  be  unconditional,  7Z1. 
general  effect  offender  is  only  to  save  interest  and  costs,  ib. 
the  tenderer  must  always  afterwards  be  ready  on  demand  to  pay,  458. 
the  tender  of  money  is  of  no  effect  unless  amount  is  deposited  with 
justice,  458,9.  461.  "^ 
when  the  fees  of  witnesses  should  te  tendered,  64. 
effect  of  tender  of  amount  of  freight  on  the  lien  of  the  carrier,  254. 
bill  of  a  bank  must  be  received  on  an  execution  in  its  favor,  264. 
Testament.     See  Wills. 

Testamentary  Guardian.     See  Guardian  and  Ward. 
Testimony.     See  Evidence. 


Index.]  T  R  K  597 

Thief.     See  Stoh7i  property. 

Threats;  when  person  may  be  recognized  to  keep  the'peace  on  account  of, 
and  proceedings  in  such  case,  495  to  498. 
payment  of  unjust  claim  under  threat  of  suit,  cannot  be  recovefed 

back,  282,3. 
when  contract  made  under  threats  may  be  avoided,  285. 
Timber.     See  Trees. 
Time;  how  computed,  when  years,  months,  or  days  are  mentioned  in  a 

.statute,  note,  or  contract,  157  n.  12.  388.  402. 
Title.    See  Ownership  of  property — Stolen  property — Possession— Trespass. 
suit  where  the  title  of  lands  may  be  brought  in  question,  cannot  be 
brought  before  a  justice,  6. 

unless  the  suit  is  for  trespass  or  forcible  entry  and  detainer,  ib. 
tenant  cannot  dispute  the  title  of  his  landlord,  304. 
how  it  must  be  proved  in  an  action  of  forcible  entry  and  detainer.  304 
to  306. 
Toll;  when  more  than  is  due  is  demanded  and  paid,  may  be  recovered 

back,  283.     (See  Sfaf.  p.  585.) 
Tools;  what  are  exempt  from  execution,  &c.,  146. 

Towns;  what  ordinances  may  not  be  made  by,  in  respect  to  strays,  454. 
Township;    (See  Trustees  of  Tuicnship.) 

when  liable  to  a  person  for  support  of  pauper,  9. 

when  liable  for  costs  of  contested  election  of  justice,  3. 

in  what  name  to  sue  and  be  sued,  17.  20. 

how  judgment  against,  may  be  collected,  138  n.  1. 

constable  to  preserve  peace,  &c.,  at  township  meetings,  271. 

and  to  give  notice  of  meeting,  and  how,  ih. 
effect  of  setting  off  new  township,  upon  strays  before  taken  up,  453. 
Trade;  contracts  in  restraint  of,  are  void,  289. 
Transcript;  form  of  certificate  to  authenticate,  179. 
fees  for  certificite  and  transcript,  108. 
who  entitled  to,  177. 

who  may  certify,  so  as  to  render  it  evidence,  79,80. 
the  docket  of  an  absent,  deceased,  or  ex-justice,  when  and  how  evi- 
dence, 177. 
liow  to  proceed  to  carry  into  execution  the  judgments,  6^c.,  of  an  ab- 
sent, deceased,  or  ex-justice,  ih. 
how  to  proceed  on,  by  suit,  generally,  178,9. 
form  of  scire  facias  on,  and  how  served  and  returned,  180, 
docket  entries  in  proceedings  on,  181. 

for  an  appeal;  when  to  be  filed  in  court  by  party  appealing  or  other 
party,  and  proceedings  thereon,  125  n.  4. 

must  Ix'  made  out  with  recognizance  of  bail,  and  delivered  to  jip- 
pellant  on  dcn^and,  125. 
how  made  upon  suggestion  that  debtor  has  lands,  162,3. 
Transfer.     See  Assignment  of  d aims  not  negotiable  —  Promissory  Note  — 

Bill  of  exchange  —  Negotiable  bond  — Sales. 
Travelers.     Sc^c  Stage  proprietors. 

Trees;  when  they  may  be  taken  and  sold,  and  when  not,  by  purohaj^cr  of 
land,  464. 
when  cut  down  by  a  trespasser  they  belong  to  the  landlord,  467. 
Trespass;  (See  Real  estate  —  Joint  wrongdoers.) 

upon  lands:  justice  may  try  title  in  this  action,  7. 
for  what  injury  it  lies,  463.  467. 


598  Tuu  ,  [Index. 

Trespass,  upon  land — confinvcd. 

may  recover  in  one  action  for  distinct  trespasses,  13. 

promoters  of,  liable  the  same  as  ir[)res('nt,  23. 

trespassers  may  be  sued  separately,  and  others  may  be  witnesses, 

and  bound  if  called  on  to  testify,  60. 
amount  of  recovery  against  one,  its  cflect  upon  the  liability  of  otli- 
ers,  23,  and  note  13;  they  cannot  recover  back  from  each  other 
amount  paid,  23. 
within  what  time  the  suit  must  be  commenced,  358.     (See  Limita- 
tion of  actions.) 
effect  of  tender  for  a  negligent  or  involuntary  trespass,  459. 
when   license  to  enter  implied,  463,4;  when  it  may  be  revoked, 
463,4;  when  the  law  gives  a  license  to  enter,  464;    to  officer  to 
serve  process,  ib.  to  traveler  when  road  is  impassable,  ih. 
what  title  or  possession  the  plaintiff  must  show  to  maintain  the  ac- 
tion, 465,6. 
defence  and  damages,  467.     (See  Tender.) 
effect  of  payment  for  value  of  personal  property  taken,  ih. 
to  jicrsonal  property:  suit  may  be  brought  in  township  where  done,  6. 
possession  sufficient  to  maintain  the  action,  12,13.  152;  for  what  it 

may  in  general  be  brought,  12;  when  constable  ]ial)lc  for,  173. 
may  recover  in  one  action  for  distinct  trespasses,  13. 
promoters  of,  liable,  23.     (See  Joint  wrongdoers.) 
trespasser  cannot  sell  the  property,  23. 

within  what  time  the  action  must  be  brought,  358.    (See  Limitation 
of  actions.) 
on  the  case:  in  what  cases  it  may  be  brought,  9,10;  within  what  time 
it  must  be  brought,  358.    (See  Limitation  of  Actions.) 
Trial;  how  witnesses  examined  on,  63. 

when  suit  is  by  summons,  trial  may  be  had  when  plaintiff,  or  defend- 
ant, or  both,  fail  to  appear,  44,5. 
when  and  how  defendant  may  have  a  new  trial,  45. 

form  of  entry  on't'hc  docket  when  a  new  trial  is  granted,  1 17. 
one  hour  in  general  allowed  after  time  fi.xed  for  trial,  for  parties,  &c. 

to  appear,  45. 
when  suit, is  by  capias,  trial  may  be  had  in  absence  of  plaintiff,  49. 
how  long  trial  may  be  adjourned   in  such  case,  and  proceedings 
thereon,  49  to  52;  if  defendant  does  not  appear  according  to  his  re- 
cognizance, justice  may  proceed  to  trial,  61. 
how  jury  trials  conducted,  97,8;  new  trial,  in  jury  cases,  98. 
in  criminal  cases;  may  be  adjourned  over,  and  how,  484;  proceedings 
thereafter,  486;  what  j)roof  of  guilt  justice  should  require,  ib. 
Trover;  for  what  it  may  be  brought,  1 1,12.  18. 

must  be  commenced  within  four  years,  358;  when  the  four  years  com- 
mence, 359. 
damages  in,  12.  356. 

effect  of  recovery  in  the  action,  upon  the  ownership  of  property,  12. 
Trunk  of  Traveler.     See  Stage  proprietors. 

Trustees  of  Township;  (Sec  Toiaiship;)  how  they  sue  for  township,  17. 
fi.\  the  time  of  holding  elections  in  certain  cases,  2,3. 
to  ap[)rove  of  official  bond  of  justice  and  constable,  3,4.  269. 
what  infants  they  may  bind  out  to  apprenticeshij),  195. 
directions  for  the  form  of  indentures  in  such  case,  511. 
their  duty  in  relation  to  such  apprentices,  197,8. 


Index.]  Av  A  R  599 

Turnpikes.     See  Highways — Corporations. 

Umpire  and  Umpirage;  deliaition  of  these  words,  202.     See  Arbitrament 

and  Award. 
Universalists;  may  be  witnesses,  58. 
Usury;  what  rate  of  interest  may  be  contracted  for  and  recovered,  550. 

whether  usurious  interest  may  be  recovered  back,  351. 
Venditioni  Exponas;  what,  141. 

when  to  be  issued,  and  to  whom  delivered,  ib. 

may  issue  after  decease  of  parties  to  judgment,  154.     See  Execution. 
Vender  and  Vendee;  (see  Sales;)  who  are  so  called,  210,  n.  1. 
Vendue.     See  Execution — Auction. 

Venire;  in  jury  cases  generally,  96;  in  proceedings  by  and  against  mas- 
ter of  apprentice,  and  form  thereof,  198  and  n.  2,  200  n.  1. 
by  justice  as  coroner  of  county,  and  form  thereof,  293.  n.  1 ;  in  forci- 
ble entry  and  detainer,  and  form  thereof,  and  when  to  be  returned, 
302.310. 
form  of,  on  trial  of  right  of  property  taken  by  sheriff',  468  n.   1. 
fees  for  issuing,  107;  for  service  and  return,  108. 
Verdict.     See  Jury. 

Vessels;  (as  to  rights  and  liabilities,'as  carriers,  see  Carrier  of  Goods.) 
contribute  rateable  share  of  loss  when  goods  thrown  overboard  in  a 

storm,  251  n.  1. 
who  and  to  whom,  and  when  liable  for  damage  to  vessel  or  goods,  oc- 
casioned by  collision,  258,9.  251. 
duty  of  those  entering  port  to  prevent  collision  with  those  in  port,  259. 
when  two  vessels  are  about  to  meet  or  crossing  each  other,  which 
must  give  way,  ib.     (See  Snags — Rocks.) 
Void  and  Voidable;  what  is  meant  by  the  word  void,  8. 
when  proceedings  of  justice  are  void,  ib. 

when  contracts  of  infant  are  void  and  when  voidable,  and  how  con- 
lirmed,  347,8. 
Voters;  at  an  election  privileged  from  arrest  for  debt,  and  when,  30. 
Wager.     See  Gaming. 
Wages.     See  Work  and  Labor. 

Wagone-rs;  are  liable  as  common  carriers,  248.     See  Carrier  of  goods. 
Warehouse-men;  who  are  deemed  such,  and  for  what  injuries  to,  or  losses 
of  goods,  they  are  liable,  248.  252. 
have  a  lien  for  storage,  355. 
Warrant; 

in  criminal  cases;   when  to  issue,  480. 

form  of  common  state  warrant,  480,1 ;  of  search  warrant,  481. 
constable  bound  to  receive  them,  483. 
how  these  writs  may  be  served,  482,3. 
form  of  return,  483.  37.  484. 

liability  of  officer  for  delay  &:c.  in  service,  and  for  escape,  483. 
when  warrant  on  account  of  threats  &c.  may  be  issued,  495. 
form  of  such  warrant,  496  n.  1. 
proceedings  in  such  case,  495  to  498. 
in  civil  cases;  against  father  of  bastard  child,  and  form  of,  and  how 
served  and  returned,  265,  and  note  2. 
against  garnishee  in  attachment,  when  it  may  be  issued,  and  form 

of,  21 8.  261 ;  how  served  and  r(!turnc(l,  22  \. 
for  taking  stray  from  taker  up,  form  of,  and  how  served,  and  form 
of  return,  446  n.  2. 


600  w  I T  [Lidex. 

Warrant  of  Atlorney;  forms  of,  tu  confess  jutlgaieat,  508. 

made  while  in  custody,  liow  to  be  e.\ecut(xl.  285. 
Waminty; 

implied  u-arranty;  what  is,  436. 
of  title  to  property  sold,  ib. 
when  buyer  may  refuse  to  pay  on  account  of  seller  not  having 

title,  437. 
that  the  article  is  merchantable,  and  fit  for  the  use  intended,  456. 
that  sample  and  bulk  is  of  same  cpiality,  ib. 
that  provisions  sold  for  domestic  use  are  sound,  &e.  437. 
that  claim  assigned  is  not  forgery,  421. 
express  xcarranty;  what  is,  438.  435. 

what  will  amount  to  a  warranty,  438. 

must  be  made  at  time  of  contract,  or  form  part  of  its  terms,  ib. 

made  after  sale  is  void,  ib. 

when  not  included  in  the  written  terms  of  the  sale,  is  void,  ib. 

(See  Fraud.) 
what  defects  it  covers,  and  what  not,  438,9. 
remedy  of  the  buyer  when  the  warranty  is  false,  439. 
what  damages  may  be  recovered  for  breach  of,  440.  433. 
remedy  when  there  is  both  fraud  and  warranty,  431,2. 
plaintiti'  must  prove  the  defect,  440. 

lit  what  time  property  taken  on  trial  must  be  returned,  440. 
in  suit  for  price,  the  defendant  may  reduce  the  recovery  by  showing 

a  false  warranty,  440.  432. 
master  liable  on,  when  made  by  his  servant  or  clerk,  on  a  sale  of  his 
property,  22. 

Widow.     See  Husband  and  Wife. 

may  bind  out  her  minor  children  as  apprentices,  193. 
Wife.     Sec  Husband  and  Wife. 
Wills;  how  to  be  made  and  executed,  and  revoked,  518. 

parent  may  appoint  by  will  guardians  for  his  children,  518. 

when  a  verbal  will  is  good,  518;  forms  of  wills,  519  to  522. 
"Witnesses;  form  of  oaths  and  affirmations  to,  in  common  cases,  93,4;  when 
a  party  is  examined  as  to  his  account  book,  190;  when  depositions 
are  taken,  89,90;  to  a  woman,  on  complaint  of  bastardy,  266,  n.  1 ; 
when  before  arbitrators,  203,  n.  3. 

form  of  subpoena  for,  53;  how  served,  and  form  of  return,  54. 

attachment  against,  fine  and  damages  for  failing  to  attend  trial,  54  to 
56;  or  for  failing  to  attend  to  have  deposition  taken,  88,9. 

need  not  attend  trial  if  fees  demanded,  when  writ  served,  and  not  paid, 
54,5. 

may  refuse  to  be  sworn  until  fees  paid,  55. 

entiled  to  fees  if  examined,  though  not  subpoenaed,  55;  so  if  subpoe- 
naed, though  not  examined.  65. 

fees  of,  109. 

how  fees  of,  collected  in  civil  cases,  110,11;  in  criminal  cases,  113. 

fees  for  swearing,  and  for  issuing  and  service  of  subpama,  107,8. 

difference  between  the  credibility  and  competency  of  witnesses,  57. 

who  are  incompetent-  from  want  of  understanding,  58;  on  account  of 
color,  58;  from  want  of  religious  principle,  58;  from  infamy  and 
crime,  and  how  proved,  58,9;  when  witness  will  gain  or  lose  by 
event  of  suit,  59;  when  servant  cannot  be  witness  for  or  against 


Index.]  woR  601 

Witnesses — coniinu  ed . 

his  maslei-,  59;  when  witness  is  liable  for  defect  of  title  in  the  pro- 
perty about  which  suit  is  brought,  59.  69. 

when  the  heir  may  be  a  witness  for  the  estate  and  when  not,  60. 

when  surety  cannot  be  witness  for  his  principal,  ib. 

when  co-trespassers  or  wrongdoers  may  be  witnesses  for  or  against 
each  other,  ih. 

when  witness  is  interested  on  both  sides,  iZ*. 

when  interest  of  witness  is  against  party  calling  him,  ib. 

when  parties  to  suit  may  be  witnesses,  and  when  not,  61. 

what  a  party  who  is  a  witness  for  his  account  book  may  prove,  189, 
190.     (See  Account  and  account  book.) 

whether  claimant  or  judgment  debtor  can  be  a  witness  on  trial  of 
right  of  property  taken  on  execution,  174. 

effect  of  witness  becoming  interested  after  suit  commenced,  61. 

when  husband  and  wife  may  or  may  not  be  witnesses  for  or  against 
each  other,  340,1. 

how  interest  of  witness  may  be  divested,  with  forms  of  release,  61,2. 

examination  of;  plaintiff  must  first  examine  his  witnesses,  63;  what 
are  leading  questions,  and  when  they  may  be  put,  ib.;  cross  exam- 
ination^  how  conducted,  63.  Q5;  when  deposition  is  taken,  90. 

can  only  state  matters  of  fact  in  his  own  recollection,  64. 

when  he  may  state  his  opinion  or  the  substance  of  conversation,  ih. 

cannot  in  general  testify  as  to  contents  of  a  written  instrument,  77; 
unless  tlie  instrument  is  lost,  or  is  in  possession  of  the  opposite  par- 
ty who  has  had  due  notice  to  produce  it,  or  is  a  private  memoran- 
dum, receipt  or  account  book,  78.  80;  nor  that  an  instrument  is  dif- 
ferent from  the  intention  of  the  parties,  or  that  a  mistake  is  made 
in  it,  85;  nor  that  a  witness  has  been  convicted  of  crime,  58. 

if  dead,  may  prove  what  he  swore  on  a  former  trial,  69. 

attesting  witness  must  be  produced,  or  his  absence  accounted  for,  83,4. 

how  the  character  and  credit  of  a  witness  may  be  impeached,  64,5.  52. 

what  questions  bound  to  answer,  65. 

proceedings  against,  for  refusing  to  testify,  QQ.  89. 

consequences  as  to  costs,  of  subpoenaing  too  many  witnesses,  &&. 

how  many  necessary  to  prove  a  fact,  ib. 

depositions  of,  when  they  may  be  read  in  evidence,  87.  92,3. 
(See  Depositions.) 

when  privileged  from  arrest,  29. 
Woman;  privileged  from  arrest  for  debt,  &c.,  30.  139. 

(See  Husband  and  wife.) 
Work  and  Labor;     (See  Mechanics.) 

not  bound  to  perform  what  is  agreed  to  be  done  gratis,  240,1.  288. 
but  liable  for  gross  negligence  in  its  performance,  240,1. 
and  in  such  case  cannot  afterwards  recover  for  the  work,  288. 

mechanics  liable  for  unskillfulness  in  their  work,  245  to  247,  6c  note. 

cannot  recover  for  making  a  gaming  device  or  machine,  288. 

when  master  may  recover  for  labor  of  his  apprentice,  201 ;  or  parent 
for  work  of  his  child,  365,6;  or  minor  child  for  his  work,  ih. 

effect  of  part  performance;  when  there  is  a  term  fixed  for  the  service, 
471 ;  or  when  a  particular  job  or  piece  of  work  is  to  be  done,  472 
and  474;  or  in  respect  to  the  quality  of  the  work,  ib. 

when  laborer  is  sued  for  not  performing,  he  cannot  be  allowed  for 
what  he  has  done,  474. 

77 


602  YEA  \_Inilex. 

Work  and  Labor — continued. 

compensation  when  nothing  is  said  as  to  wages,  474. 
tender  of;  under  contract  for,  when  and  where  to  be  made,  456.  430. 
when  due  on  demand,  456;  when  time  lor  performance  is  extend- 
ed, li.;  cfiect  of  tender,  460;  form  of  docket  entry  when  tender 
has  been  made,  162  n.  1 ;  costs  in  such  case,  460,1. 
(See  Tender.) 
'Wnis.     See  Sunwions — Capias  ad  respondendum — Scire  facias — Venire 

— Execuiiun —  Warrani — Mittimus,  ^-c. 
Year ;  when  mentioned  in  a  statute,  note,  contract,  &c.,  how  computed, 
157  n.  12.  402. 


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